Congressional Record, Volume 164 Issue 166 (Friday, October 5, 2018)

[Congressional Record Volume 164, Number 166 (Friday, October 5, 2018)]
[Senate]
[Pages S6635-S6679]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

EXECUTIVE CALENDAR--Continued

The PRESIDING OFFICER (Mr. Tillis). The Senator from Washington.
Ms. CANTWELL. Mr. President, I come and join my colleague from Oregon
on the floor this evening and thank him very much for his comments and
hard-fought efforts to try to illuminate the issues that are before the
American people in this nomination that we are going to be voting on.

As nightfall does not come at once, neither does
oppression. In both instances, there is a twilight . . . and
it is in such twilight that we all must be most aware of
change in the air--however slight--lest we become unwitting
victims of the darkness.

Those aren't my words; those are the words of the late Supreme Court
Justice William O. Douglas. Yes, that is right, I quoted William O.
Douglas--not because he was from Yakima, WA, via Maine, originally, but
because I wanted to bring up the rights of Americans that could be
undermined by the confirmation of Judge Kavanaugh to the Supreme Court.
That is because for generations the U.S. Supreme Court has been an
institution that affirmed rights of Americans and moved our country
forward, especially when we needed it most.
In 1954, it made a landmark decision to end segregation of our
schools and to rightly give access to equal education. In 1964, it
recognized the right to privacy and the ability to access
contraception. It is hard to imagine today, in this era, that we needed
that fundamental right and that it had been previously blocked. Yet it
was. In 2015, the Supreme Court upheld the fundamental rights of
marriage for same-sex couples, holding that they had equal protection
under the law.
Yes, these are rights that have been decided by our Court and have
moved our country forward. So I became very concerned when President
Trump nominated Judge Brett Kavanaugh to the Supreme Court because he
was on a list of an organization that wanted to see the literal text of
the statute over upholding the hard-won rights of all Americans.
When it comes to the rights of consumers--healthcare rights,
environmental laws, privacy rights, labor rights--I want to know where
a Supreme Court Justice is going to be in upholding those hard-won
rights that Americans and our society have pushed forward for decades.
In this case, he will be replacing a Justice who has been a key vote on
many fundamental rights in America.
So I definitely express my opinion that I do not believe that Judge
Kavanaugh will protect those hard-won rights. And my concern is that he
does not have a judicial philosophy that is in the mainstream views of
America. He has the most dissents of any judge on the DC Circuit. That
is to say that he is dissenting from even the most conservative judges
on that Court. He is still dissenting. So I don't find those views in
the mainstream views of Americans.
Let's just take one example: healthcare. More than 3 million
Washingtonians in my State have preexisting conditions, such as
diabetes, heart disease, and asthma, and Americans don't want to be
discriminated against because of their medical history.
More than 75 percent of Americans support the preexisting condition
protections that have been put into law under the Affordable Care Act.
These protections help keep them from having medical debt and
uncompensated care. All of these issues are very important for us to
continue to protect.
In 2011, Judge Kavanaugh refused to uphold the constitutionality of
the Affordable Care Act, and he has criticized the Supreme Court's
decision to uphold parts of that law. In his confirmation hearings, he
refused to say whether these current protections for Americans are
constitutional. His record suggests that he will not defend these
protections or Congress's clear intent in writing them.
It is not just some theoretical issue. Today, these protections are
being threatened in the courts. They are being threatened by a group of
Republican attorneys general who are trying to get a Federal court in
Texas to strike down these protections in the healthcare law, and the
Justice Department has decided to join those States in asking the
courts to strike down these preexisting condition protections. So this
case is definitely working its way through the court system and could
likely end up before the Supreme Court.
Some have suggested: Well, don't worry about that. Don't worry about
that because Justice Roberts will uphold the healthcare law. He will be
the swing vote, and Judge Kavanaugh's appointment to the Supreme Court
is irrelevant on this point.
That is wrong. First, you really can't count on Chief Justice Roberts
in upholding the Affordable Care Act. In fact, that is what the
attorneys general are arguing, that his previous decision will help to
strike down the law. The times and circumstances are different now
because the Federal Government isn't fighting to protect the Affordable
Care Act, which it did in previous administrations, and there is no
guarantee that Justice Roberts will rule in favor of the law. There are
other aspects of the Affordable Care Act that he has also sided
against.
It is hard to believe now that this fundamental right that has been
so hard fought for so many people may be in danger. I can say that in
my State, I have been in hospital after hospital and healthcare
facility after healthcare facility. Doctors say to me that they can't
even imagine what it is going to be like to go back to prior to the
preexisting condition protections. It has become such a norm that they
are covering people that they couldn't imagine that kind of
discrimination today.

[[Page S6636]]

When it comes to reproductive rights, those are under threat as well.
In 2017, Judge Kavanaugh suggested that he supported Justice
Rehnquist's dissent in Roe v. Wade, which called the landmark decision
a product of ``freewheeling judicial creation of unenumerated rights
that were not rooted in the nation's history.''
As somebody who sat on the Judiciary Committee for the first 2 years
I was in the Senate, I can guarantee that I asked every judicial
nominee whether they believed in the penumbra of rights guaranteed in
the Constitution for the right to privacy or they didn't. The reason I
did that is because those who really don't believe that Roe was rightly
decided believe that those rights are not enumerated and could overturn
them in the future.
While Judge Kavanaugh may now believe that Roe v. Wade is settled
law, records from his days in the administration raise doubts. Perhaps
more importantly, during his confirmation hearing, he refused to say
whether it was wrongly decided. Why is that important? Because in the
near future, if a majority on the Supreme Court decides that it was
previously wrongly decided, they can just overturn it.
If Judge Kavanaugh does not believe the Constitution gives women the
right to make decisions about their own bodies, then whatever assurance
he gives us now about precedent is hollow. This is why it is so
important to people in my State. We voted in 1991 by an initiative of
the people to have this right in our State law. We in the State of
Washington and millions of women want to see every woman in America
have these same rights.
I took President Trump at his word when he said he was going to put a
nominee on the Court who automatically would overturn this. These
Justices--Roberts and conservatives like Alito, Thomas, and Gorsuch--
would now be joined by Kavanaugh and overturn this right in a 5-to-4
decision. Even if they don't fully overturn it, they could effectively
undermine its protections piece by piece. Chief Justice Roberts, for
instance, has repeatedly upheld restrictive limits on reproductive
rights. These Justices have proven themselves very willing to restrict
access to safe and legal abortions.
As I said, the people of my State decided that they wanted to protect
this, and I am here to help and defend that for other women in the
United States of America.
If Judge Kavanaugh were to serve a lifetime appointment on the Court,
he could also pose threats to the rights of LGBTQ Americans not just in
my State but across the country. The Supreme Court will likely hear
cases that impact this community.
There are cases pending like the Arlene Flowers case in the State of
Washington where a florist refused to provide services at a gay
couple's wedding. The Court could also likely hear arguments on
President Trump's discriminatory ban on transgender servicemembers. The
rights of LGBTQ Americans are at stake with Judge Kavanaugh on the
Bench because his broad view of religious freedom could provide a
license to discriminate against these individuals.
Judge Kavanaugh's record also suggests that he will be hostile to the
protection of other privacy rights. In 2015, after it was revealed that
the National Security Administration, NSA, had been collecting
Americans' phone records in bulk without warrant, Judge Kavanaugh
decided that national security needs outweighed individuals' right to
privacy. He supported expanding warrantless surveillance by the
government.
What is more, Judge Kavanaugh has ruled in favor of a restrictive
voter identification law, raising concerns that he would support
scaling back hard-won voting rights. Those rights are sacred in our
country, and the last thing we need is a Supreme Court that would
refuse to defend them.
I am also concerned about his views on issues that could affect
Native Americans. Native Americans need to have their sovereignty
recognized and their rights protected. In this term alone, there could
be three cases before the Court, and some of the most basic Tribal
rights in our country are at risk. Judge Kavanaugh's position, found in
his own writings before he became a Federal court judge, indicated that
he did not take seriously the constitutional rights of Tribal
governments and the sovereign obligation of the United States when it
entered into treaties and agreements with Tribal and Indian people and
Alaska Natives.
Time and again, these issues are before us and before a court, and
that is why, as I said, I believe in a court that protects these hard-
won rights. I know that textualists will tell you something different,
but where would we be on just the basic rights of contraception if we
didn't have a court that did not find unenumerated rights in our
Constitution? Where would we be on the future rights of privacy that
need to be protected in the United States of America?
Time and again, Judge Kavanaugh has favored big companies over
everyday Americans, using a twisted logic to defend big corporate
polluters. Kavanaugh seems to have a particular animus against the
Environmental Protection Agency and its efforts to follow Congress in a
direction that has been given in law to reduce air and water pollution.
That is a direct affront to the leadership of people like Ed Muskie,
who led Congress in its effort to pass the Clean Air Act in 1970 and
control pollution and in 1990 when Congress amended the law to combat
acid rain, ozone depletion, and auto emissions. And since then, the
U.S. Supreme Court has upheld the Clean Air Act.
In 2007, in the Massachusetts case, the Supreme Court ruled that the
U.S. Environmental Protection Agency has the authority to regulate
greenhouse gases under the Clean Air Act, and Justice Kennedy, whom
Judge Kavanaugh will replace, provided the fifth and deciding vote in
that decision. But as Kennedy's replacement on the Court, the
government's ability to mitigate climate change could be lost. That
would mean everything from not addressing these impacts we are seeing
on our coastal communities to what we are seeing in damage from
wildfires, and it could mean that the report that was done by the
Government Accountability Office saying that climate change impacts are
costing us over $620 billion every 10 years will continue to be
ignored.
We want a Supreme Court Justice who is going to follow the law and
abide by and uphold what Congress has said, and that is what the Court
has said as well. Judge Kavanaugh said he didn't think the EPA had the
authority to regulate air pollution across States. The U.S. Supreme
Court reversed his opinion. In a 6-to-2 decision, they concluded that
Judge Kavanaugh had improperly applied his own policy judgment rather
than the plain text of the statute written by Congress. That is what
the Supreme Court said in reversing him.
I will say it again. The U.S. Supreme Court said Judge Kavanaugh used
his own policy judgments rather than the law as it was written by
Congress.
So, yes, I have concerns that his views are not in the mainstream of
America and of judicial philosophy when it comes to protecting our
environment.
In another case, he opposed the EPA's interpretation that it could
control ``any air pollutant'' because he thought that the terms of the
Clean Air Act didn't include that. He also sought to limit its
authority to protect Americans from greenhouse gases. In a 2013 case--
the Center for Biological Diversity--Kavanaugh said that the Clean Air
Act does not even cover carbon dioxide at all.
In fact, he ruled to weaken environmental protections in 89 percent
of the cases that have come before him. So I do not call that in the
mainstream views of judicial philosophy.
Tomorrow, we will have major issues before us as this vote takes
place. When it comes to whether you are siding on behalf of the
American worker or large corporations, I, too, have concerns.
In a 2015 case, he overruled the National Labor Relations Board,
siding with a hotel that had requested police officers to issue
criminal citations to union demonstrators who were legally protesting.
In another case, Kavanaugh sided with a company that had banned
employees who interacted with customers or who worked in public from
wearing union shirts that said certain words on them. The NLRB found
that the employer committed an unfair labor practice, but Judge
Kavanaugh disagreed,

[[Page S6637]]

concluding that the union members did not have a right to wear the
shirts because the company believed it would be damaged.
In 2013, a SeaWorld trainer was dismembered and killed by a whale
during a live show. Kavanaugh ruled against the Occupational Health and
Safety Commission's conclusions that SeaWorld had acted wrongly and had
insufficiently limited trainers' physical contact with orcas.
I am concerned about the information age that we live in and that
when it comes to issues relating to protecting consumer rights, there
is no bigger consumer right than protecting the right of those on the
internet to access information. We cannot have a two-tiered internet
system in which these rights are not protected by a court.
In this case, Judge Kavanaugh wrote that the FCC did not have the
right to regulate broadband providers as ``common carriers.'' Instead,
he made it clear that he believes that broadband cable companies should
be able to control your internet experience as they see fit.
Part of his flawed analysis rested on the idea that what the FCC was
purporting to do by protecting consumers was a type of rule that was so
consequential that it could only stand if Congress bestowed ``clear and
unambiguous authority'' on the agency. This is in contradiction to the
Supreme Court's own precedent, which determined that the FCC did have
the authority to decide whether and how to regulate broadband.
The other part of his faulty analysis rested on the view that cable
and broadband companies that operate the pipes that serve as a ramp to
the internet have First Amendment rights, and they should be able to
exercise that right to deny or limit consumers' access to content.
I guarantee you that saying that the First Amendment gives cable
companies the right to charge whatever they want to charge you for the
future is not in the mainstream view of judicial philosophy or what the
American people have come to expect.
So let me say again that these important issues are not part of Judge
Kavanaugh's willingness to protect these rights to healthcare, of the
environment, of privacy, of consumer rights, and the things that we
hold so dear, that we have all fought for, legislated for, and had
courts uphold and preserve.
I am not buying the notion that a strict textualist is the way to go.
I believe my colleagues on the other side of the aisle have every right
to disagree with that, but I would ask them, how are you ever going to
move America forward in decisions like our desegregation of education
or on contraception or on these other privacy rights if you don't
interpret the Constitution to today's needs?
I would say now that the biggest threat we face is the overreaching
of an administration that every single day does something to not comply
with the law as it is written. The President just issued an Executive
order weeks ago that exempted administrative law judges from the
competitive service; instead allowing the agencies to hire them.
The President's Executive order does not reflect the mainstream views
of Americans. Administrative law judges should be well qualified and
impartial, and the process to select them nonpartisan and fair.
Is this judge going to challenge the President or is he just going to
say that he agrees with the President of the United States? As one
White House Counsel from the Nixon administration said, if Judge
Kavanaugh is confirmed, it ``will be the most Presidential powers-
friendly Supreme Court in the modern era.''
Well, I can tell you this: If those on the other side of the aisle
are promoting this nomination because they want a rubberstamp on the
Trump administration, we will fight them every step of the way. The
Supreme Court is supposed to be the impartial arbitrator, the one that,
even though we have different Congresses and different views,
interprets the law over a period of time, that does not make political
decisions but makes impartial decisions. To have somebody on the Court
now when every day an administration is not following the law and
basically subverting it--it is a time where we need a Supreme Court to
stand up and do their job and hold the administration accountable.
I am sure it is not pleasant to hold an administration accountable,
but this is an important time for checks and balances in the United
States of America. I don't believe that the rights of individuals will
be protected from the overreach of this administration or be defended
by this nominee.
I know a lot has been said today about what the process for this
nominee has been for the Court. I know there is a lot that will
continue to be discussed after this day about how this institution has
handled this situation and the accusations against Judge Kavanaugh. All
I can say is that we need to do better. We need, as an institution, to
have a better process for evaluating these situations and how to make
them less partisan.
But I will tell you this: I found the testimony by Dr. Ford credible,
and those saying ``Well, it must have happened; it just wasn't him'' is
another example of denial of information instead of getting to the
truth of the situation. We have to do better because we are an
institution that is supposed to lead on this issue. We are not supposed
to be an institution like the other institutions we have seen sweep
these allegations under the rug, only to come back at some point in
time when there are 300 cases or 400 cases or X number of people who
have been impacted.
This institution has to figure out a better way to lead on this
issue, and I plan to continue to work with my colleagues on both sides
of the aisle to help us continue to focus on this. So many people in
America are counting on us, so many women in America are counting on
us, and so many Tribal women are counting on us. The statistics are
just too high to leave a nominee on the Court with a doubt about this
investigation, with this situation not rendered to a point where more
people felt that the information was fully investigated. We have to do
better. We are going to be challenged as we move forward.
As I said, I don't believe that Judge Kavanaugh's nomination is in
the mainstream of judicial philosophy in the United States of America.
That is why I am not supporting him. I didn't support him when he was
first nominated for the DC Circuit Court because I had doubts that he
would be that individual who would put political, partisanship aside
and be that impartial Justice. I didn't make a decision right away; I
went back and researched his record. I looked at the decisions on basic
rights that so many Americans are counting on, and I can tell you this:
For these rights, you cannot count on Judge Kavanaugh. Therefore, he
does not get my consent to move forward to the Supreme Court.
I yield the floor.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. MURPHY. Mr. President, these are the big leagues for a Senator.
Depending on how long you serve here, you get only a handful of
opportunities to vote on the confirmation of a Supreme Court Justice.
We may know how this is going to go tomorrow, but many of us who have
very serious concerns about the precedent that this confirmation
creates for this country that we love are going to be here on the floor
tonight--through the night--trying to implore our colleagues to think
differently about this or at least think about how we can do this
differently the next time around and how we can come to some common
understanding as to what the rules of the game should be and what the
standards should be when we are interviewing candidates for one of the
most important jobs in the world, the U.S. Supreme Court.
I have a few things to say here tonight, as the hour gets late. I
wanted to start by talking a little bit about what the standard is.
What is the standard that we should apply when we are considering a
submission from the executive branch to sit on the Supreme Court?
It seems to me as if this whole exercise has been conducted in a
manner to suggest that, A, there is no one else eligible for the
Supreme Court, other than Brett Kavanaugh, as if we live in an Adam and
Eve world in which we have few, if any, alternative choices

[[Page S6638]]

and, B, that this body owes some significant and potentially binding
obligation to the President when he makes his choice.
I just want to go back over the standard for a moment because it is
not uncommon for the Senate to reject Supreme Court nominees who have
been sent to this body. In fact, if you walk out the door on the other
side of this Chamber and you hang a left, you will quickly come to the
Senate Reception Room. In that room, there is a relatively freshly
painted picture of Oliver Ellsworth and Roger Sherman. This is one of
the newer portraits here in the Capitol, and it depicts two Connecticut
delegates to the Constitutional Convention scheming over what would
become called the Connecticut Compromise.
This is the breakthrough at the Constitutional Convention that
establishes the Senate with two Members per State and the House of
Representatives elected by proportion of population per State.
Oliver Ellsworth is a significant figure in the history of my State
and in the history of this country but not only because of his
contribution to the adoption of the U.S. Constitution; he also plays a
significant role in the beginning of the American judicial system. He
is the father of the American judiciary in that he authored, as a
Senator, the first Judiciary Act, which established the Federal court
system.
Then he plays another important role in the early history of the
courts because when it was time for George Washington to nominate a
second Supreme Court Chief Justice, the name he sent to the Senate was
rejected. He sent his friend John Rutledge, but because his friend John
Rutledge had played a fairly controversial role in the adoption of the
Jay Treaty, the Senate voted Rutledge down.
Washington, not wanting to be embarrassed again, knowing that he
needed the consent of the Senate to get someone into that role, picked
one of the Senate's own. He picked Oliver Ellsworth, who was the
foremost expert on the judiciary in the Senate. Oliver Ellsworth became
the Chief Justice of the Supreme Court. His bust sits inside the Old
Supreme Court Chamber here in the Senate today.
I tell that story only because it is a reminder that at the very
earliest stages of the American Republic, the Senate decided to
exercise its independent discretion when it came to choices for the
Supreme Court by the President of the United States.
George Washington figured out very quickly that the Senate does not
owe the executive automatic deference when it comes to the choices that
are placed before the Senate. It is advice and consent. In fact, that
practice of refusing to give complete and total deference to the
executive has continued up until this day. From World War II until this
moment, I think the number is seven selections by the President that
ultimately did not get confirmed.
Sometimes the Senate gives a hint ahead of time that a nomination
isn't going to go so well, and the President withdraws that nominee.
Not in every case is there actually a vote before the Senate.
Oftentimes, the signal is clear enough from the Senate that consent is
not going to be given, and the administration withdraws that nominee.
Let's be clear that there is no binding obligation on behalf of the
Senate to say yes to a nominee whom we believe to be flawed or wrong
for the moment--no obligation on behalf of Members of the President's
party and no obligation on behalf of Members of the opposition party.
Second, I have heard my Republican colleagues, ad nauseam, treat this
selection as if we are a court of law with a defendant sitting in front
of us whose freedom is going to be taken away if he doesn't get a
positive vote for confirmation. Why do I say that? Because over and
over again, I have heard this idea that Brett Kavanaugh is innocent
until proven guilty, that there is a presumption of innocence with
respect to the claims that surround him. Those are not traditionally
terms that have been used with respect to the choices we make about
nominees to the judicial branch or to the executive branch. Those are
terms that are used in courts of law.

The presumption of innocence is given to a defendant. The high burden
of proving guilt beyond a reasonable doubt is placed on the prosecutor
because the stakes in a criminal trial are fundamentally different from
the stakes in an appointment to the Supreme Court or to become the head
of a department.
In a court of law, in a criminal court of law, the bar, the standard
is set high because the consequence to that defendant is his liberty
being taken away from him or her. That is not the case for Brett
Kavanaugh or any other name that gets sent to this body for
confirmation. If Brett Kavanaugh were not to receive a confirmation
vote to the Supreme Court, he would go right back to the appellate
court with a nice job and a nice salary, as would many other nominees
who don't get a confirmation vote from this body. Their liberty isn't
taken away. They go back to some pretty good jobs.
That is why it is nonsensical to suggest that the standard we apply
here to a nominee is similar to that of a criminal court. We don't have
to prove that reservations about a nominee can ultimately be held to
the same standard as in a criminal court. Why? Because the consequences
are lower but also because there are other people who can serve that
role. You err on the side of caution often when it comes to nominations
because the consequences for the country of simply moving on to the
next nominee for a Cabinet post or a judicial job are, frankly, fairly
low. The standard is not a criminal standard.
We have often talked about the fact that this is much more like a job
interview. I think that is right. I don't think it is a perfect
analogy. This is a pretty special and important job. There are some
procedures around this job interview that we don't hold ourselves to
when we are interviewing somebody for a position in our office. Let's
all be honest with each other. If somebody showed up in our office
looking for a position and their file looked like the file of Brett
Kavanaugh, none of us would hire that individual--not a single one of
us.
Tell me that a Senator would hire an individual who came to their
office, who might have looked qualified, who might have a sterling
resume, but whose file included several credible allegations of serious
misbehavior. You probably wouldn't even go through the trouble of
conducting an exhaustive inquiry into whether those allegations were
true or not, as I think we had an obligation to do with respect to this
case. I would argue, we had an obligation to do that investigation here
because this is different from a job interview for a legislative
assistant or a person who answers our phones.
Let's be honest that if those allegations were before us as
employers, we wouldn't hire that individual. And we certainly wouldn't
hire an individual who conducted themselves in the job interview in the
same way that Brett Kavanaugh conducted himself when he came before the
Judiciary Committee last week. It is much more like a job interview
than it is a criminal trial. It doesn't neatly fit into either
category, but we wouldn't hire that individual in our office because we
know that there are plenty of other qualified applicants for the jobs
we are looking for. Why take a chance on someone who might be
fundamentally wrong for the position we are interviewing for?
I think it is important at the outset to get the standard right. The
terminology that gets thrown around here as if this is a criminal trial
just misunderstands the nature of the job that we have before us.
I want to turn to the arguments that I would use if I thought I had
the chance to change the mind of some of my Republican colleagues this
evening. That is probably impossible at this late stage, but we are
here, so I might as well give it a try.
I agree with everything Senator Cantwell said about the jurisprudence
of Judge Kavanaugh on the appellate court. I think he is a dangerous
nominee because he does fall fairly far out of the judicial mainstream.
I heard Senator Collins on the floor earlier today talking about how
she hoped that he would be a bridge between the two sides of the Court,
how she thought that he might ultimately be someone who would lead to
fewer 5-to-4 decisions being rendered on the Court.
She used as evidence of that hope a statistic that is curious. She
talked about the fact that he voted with Merrick Garland 93 percent of
the time

[[Page S6639]]

on the court. Brett Kavanaugh voted with Merrick Garland 93 percent of
the time on the court because the appellate court in DC--as is the case
with most appellate courts in the country--renders most of their
decisions in unanimous form. All of the judges are agreeing with each
other on the vast majority of cases. That statistic does not tell you
whether Brett Kavanaugh is a bridge builder or whether he is an
outlier.
Fortunately, there is another, more relevant statistic; that is, the
percentage of times a judge dissents, who stands away from his
colleagues, who has formed a consensus and rendered an opinion of his
or her own.
No one on the DC Circuit dissented during Judge Kavanaugh's time on
that court more often than Judge Kavanaugh. Some of those dissents were
pretty creative dissents. Some of the things we are most worried about
with respect to the friendliness of Judge Kavanaugh to corporate power,
his distaste for regulation, comes from those dissents in which
Democrats and Republicans--or, put better, judges appointed by
Democrats and Republicans--on the DC Circuit found a way to agree, but
Judge Kavanaugh stood over here with some novel theories of the case as
to why regulatory bodies couldn't get into the business of big
corporations.
The history in appellate court is not of being a bridge builder; it
is of standing outside of that mainstream, challenging the consensus.
That is who Judge Kavanaugh is going to be on the Supreme Court.
I will give you an example, something that is close to my heart. I
had a lot of arguments in Connecticut about the future of gun policy in
this country, just like we have a lot of arguments here. By and large,
people in my State--even the folks who don't agree with all the things
I would do if I were in charge of America's gun laws--generally think
it should be up to us to decide. They might not think the Second
Amendment allows us to pass a bill banning all guns in the country, but
they think the question of who can own guns and what kind of guns can
be sold is a question better left to legislature.
Brett Kavanaugh has a novel theory about the limits of the
legislature's ability to regulate gun ownership. It is a theory that
even for him is pretty far outside of the mainstream. He actually laid
it out for the Judiciary Committee in a series of questions and answers
with the ranking member. He said: Listen, I think if a gun is in the
commercial space, the Constitution grants it permanent protection. His
argument is that once a gun is sold privately, you can never ever ban
it. That is ridiculous. That is not how any courts have read the law
prior to this time.
This Congress has regularly made the decision that some weapons are
not proper for commercial sale and have pulled them out of the
commercial market. In the 1930s, Congress decided that automatic
weapons that were out in the streets--the so-called Tommy guns--should
come out of the commercial market. In the 1990s, we made the decision
that assault weapons--the semiautomatic tactical weapons--should be
restricted. Kavanaugh says: No, once a gun is sold privately, you can't
ever take it back, no matter how dangerous. No matter how dangerous it
becomes, no matter the mistake that Congress thinks it might have made
in legalizing that weapon, once it is out there, you cannot take it
back--so says the Second Amendment. It is a radical idea, as is his
theory of the case on abortion rights.
We can talk about the case that came before his court in which he
denied the ability of a young immigrant woman to seek an abortion
despite the fact that she fit all the other legal requirements for that
procedure, or we could just look to the fact that in his testimony, he
parroted the political jargon of the anti-choice movement. He used
phrases that courts don't use when talking about the issue of abortion
or reproductive healthcare. He used the phrase ``abortion on demand,''
which is a ridiculously politically loaded term. I have no idea what
that means, but it is a term that is regularly used by the anti-choice
political movement. You can't get an abortion from a vending machine,
but that is what the phrase ``abortion on demand'' seems to suggest
exists in the world, and Judge Kavanaugh used it.
He also called birth control an abortion-inducing drug, which it is
not. Simple science can serve to explain that birth control certainly
can prevent a pregnancy, but it does not cause an abortion. But Judge
Kavanaugh used that term in his confirmation hearing because it is part
of the political opposition. It is part of the basket of propaganda
that gets used to try to pull down protection for reproductive choice
around the country.
I share many of the reservations that my colleagues have expressed
when it comes to Judge Kavanaugh's record on the Second Amendment,
Judge Kavanaugh's testimony before the Judiciary Committee in his first
hearing on the issue of reproductive choice, as well as the
reservations many of my colleagues have about what he will do to the
Affordable Care Act.
I will concede that his writings on the Affordable Care Act are
limited. He has expressed some hostility to the Affordable Care Act. He
said in one of his decisions that if the Congress could go so far as to
require people to buy healthcare, there was no limit to the potential
reach of Congress's power.
On this one, I take the President at his word. The President said he
would never make the mistake George Bush did in appointing someone to
the Supreme Court who would uphold the Affordable Care Act, as John
Roberts did. He promised he wouldn't make that mistake again. On this
one, given the over-the-top, incessant, persistent hostility the
President has expressed for the Affordable Care Act, I trust he has
made good on his promise and that he has sent someone to us who is
going to work with him to try to unwind the Affordable Care Act.

I was an early opponent of Judge Kavanaugh's. I didn't wait very long
to express my opposition because I see he is so far out of line with
Connecticut values that he is not going to be a judge in the model of
those true centrist judges who maybe I didn't agree with on issue after
issue but I thought gave each question before them a fair look.
I also don't think that is my best case with my Republican friends
because you feel differently about the Affordable Care Act and about
the Second Amendment and about the issue of choice than I do. It is
probably not the best tactic at 1 o'clock in the morning to try to
convince you to vote against Brett Kavanaugh based upon his
conservative, I would argue rightwing record as an appellate judge. So
let me try some different arguments out on you. Some of these will have
to do with process. Process is important. Process is important because
it is kind of all we have. When it comes down to it, democracy holds
together because of a set of rules we all agree to follow. It is called
the rule of law, broadly.
In this place, it is a set of precedents and traditions that have
held up pretty well over 240 years. As those precedents and traditions
start to fall, so do the edges of democracy itself. I know to some it
feels like insider politics--beltway jargon--to be talking about the
process we have gone through here, but there are some important
precedent-shattering decisions that have been made by the majority with
respect to the Kavanaugh nomination.
The first is the documents surrounding Brett Kavanaugh's candidacy.
As many of my colleagues have said, we have seen somewhere around 6
percent to 7 percent of all the documents relative to Brett Kavanaugh's
time as a judge and as a staff person in the executive branch. We have
seen a small slice of those documents. I think the 7-percent number
applies to the documents relative to his time in the White House.
I listened to Senator Lee earlier tonight talk about the fact that it
wasn't his fault that we didn't see the documents because those are in
the possession of the administration, and the Bush administration and
representatives of the Bush White House are making the decisions about
what documents Congress can see and can't see independently of Brett
Kavanaugh.
That is not true. The individual who is overseeing the decision about
which documents Congress can see and can't see is a close confidant,
ally, and colleague of Brett Kavanaugh's. In fact, 2 weeks ago when the
nomination of Brett Kavanaugh was thrown into doubt and the White House
convened a war room--a war room of Judge

[[Page S6640]]

Kavanaugh's most loyal, trusted advisers--the individual who was
vetting the documents for the Bush White House was in the war room.
This was not an independent exercise of discretion on behalf of the
Bush White House; this was one of Judge Kavanaugh's primary backers
making decisions on which documents we could see and which ones we
couldn't. This was a political job.
We are left to wonder why we get so few. What is in those other
documents that were so explosive that you had to put a political ally
of Brett Kavanaugh's in charge of the disclosure of those documents and
give us so few?
Here is why the process matters. Once you have made the decision that
you are going to create a structure by which you withhold evidence that
would be relevant to the decision the Senate makes because--well, just
because--it becomes the new rule. I am not here to say what goes around
comes around; I am telling you that once you make the decision that
``You don't need to see evidence on a particular nominee because we are
not going to give it to you because we think it might be damaging,''
that becomes the new rule. Then, all of a sudden, there will become a
day when my friends on the other side of the aisle want evidence they
are not getting either. The withholding of documents really matters. If
we can't make sound decisions, then this whole institution becomes
weaker.
Second, I want to move to last Thursday's hearing. I think there is
also some precedent-shattering decisions we are making in the wake of
what was a stunning performance by a nominee before the Judiciary
Committee.
Let me talk about the lies.
I believe Dr. Ford. I think she was credible, thoughtful. Everything
she said in that hearing seemed to be an effort to try to get to the
truth. I, frankly, don't know whether Judge Kavanaugh wasn't telling
the truth or legitimately doesn't remember what happened because he was
so intoxicated.
I can set aside the question of whether Judge Kavanaugh was telling
the truth about that particular assault and still have serious concerns
about all of the other smaller lies he told during the testimony.
I understand some of the stuff that came up was embarrassing to him,
some of these terms and phrases. Yet he was asked the questions, and no
matter how embarrassing it was to talk about what boofing is or what a
devil's triangle is, he was obligated to tell the truth, and he didn't.
We have plenty of corroborating evidence to suggest that he and his
friends knew exactly what those terms mean, knew exactly what they were
referring to with respect to the young women with whom they were part
of an alumni club.
I know it sounds trivial to be talking on the Senate floor about
words and phrases that high school kids were using. The fact that they
were using those terms, said certain things when they were kids,
doesn't bother me at all. What bothers me is that a nominee for the
Supreme Court has such a casual association with the truth that he
couldn't admit to us what were some embarrassing admissions and lied
instead.
The precedent of letting a nominee get away with that--even if you
don't believe he told a big lie, even if you only believe the mistruths
were on the smaller things--is another precedent-shattering decision,
because all of a sudden, we send the message to people who want to
apply for the most important jobs in the world that telling the truth
is not that important.
I get it. The cat is out of the bag. The horse has left the barn. I
get it that the top of the Pandora's Box is open. We have a President
of the United States who doesn't tell the truth every single day. We
have a President of the United States who goes on Twitter and makes up
stuff about U.S. Senators. Our bigger problem is not the small
mistruths--the potentially small mistruths of Brett Kavanaugh's; our
bigger problem is that we have a President who literally can't get
through a day without making up something.
That sends a worse message to our kids than the mistruths of Brett
Kavanaugh, but, nonetheless, the Supreme Court is the Supreme Court. It
is a lifetime appointment. At least if an Executive gets into office
and starts making stuff up, we can get rid of him or her after 4
years--not the Supreme Court. You send somebody up to the Supreme Court
who fibs, and that individual is there forever. Thus, maybe our
standards should be a little bit higher.
Third, I want to talk about Judge Kavanaugh's disposition in that
hearing and some of the things he said about how the allegations came
forward. I talked about this on the Senate floor, I think, now 2 days
ago. So I will not repeat it all. But his belief that Dr. Ford's
allegations or Ms. Ramirez's allegations came forward as part of some
vast conspiracy led by progressive groups and Democratic Senators on
behalf of Hillary and Bill Clinton is delusional.
I understand that politics in this town are rough. We have all been
subject to character attacks we think are unfair, but that doesn't mean
there are these vast cabals of people on the left and the right wing
who are out there spinning tales on a daily basis about each other.
What we know is that Dr. Ford brought this forward to her Member of
Congress before Brett Kavanaugh was even the nominee. What we know is
that it got leaked to the press, likely by somebody who didn't have an
interest in Brett Kavanaugh as a nominee, but not by a Democratic
Senator.
What we know is that the allegations that followed came out as a
consequence of that first allegation. There is zero evidence that there
is some grand conspiracy of Democrats in league with the Clintons to
try to bury Brett Kavanaugh.
Further evidence of that is that if that were our MO, why did we wait
a year and a half to employ it on Brett Kavanaugh? If Democrats' method
of operation was to gin up a whole bunch of false allegations about
individuals and make accusations about sexual assault that weren't true
just to muddy them up and smear them, why didn't it occur to Neil
Gorsuch who, frankly, engendered much more hostility among many of our
friends and backers, because that was the seat that we believe was
stolen from Merrick Garland. Why didn't we gin up those kinds of
allegations about the President's early nominees to the Cabinet who,
frankly, spun up a lot more grassroots anger than Brett Kavanaugh did
in the summer of 2018?
The answer is because this wasn't a conspiracy. This wasn't a whole
bunch of Democratic Senators sitting around. These allegations came out
organically, and whether or not you believe they are true, to go before
the Judiciary Committee as a judge and make the allegation that there
is a conspiracy including Democratic Senators against you, when you
have no evidence for it, tells us all we need to know about your
fitness to serve on the Bench.
If you are making things up in order to fit the narrative that you
think will be most helpful to make your case before the Senate, why
would we think that you wouldn't do the same thing on the Court, which
leads me to the most troubling passage of his testimony, and I heard
Senator Lee launch a defense of it. I have heard others launch a
defense of it, but I watched it again before I came down to the Senate
floor just to make sure that I had it right.
At the end of his diatribe against Democrats, at the end of this
description of a Clinton-connected conspiracy that he believes is
launched against him, he uses this phrase--and I am paraphrasing the
beginning of this. He says: As we all know in the political world of
the early 2000s, ``what comes around, goes around.''
Now, I listened to it again today just to make sure that that wasn't
a lead-in to some other thought, and it wasn't. He starts a new thought
after that. He starts talking about how he is a generally optimistic
guy.
The passage about the conspiracy theory and about how badly he has
been treated by the Democrats ends with a punctuation point right
before which is the admonition ``what comes around, goes around.''
There is little way to read that other than as a threat to those who
are going to oppose him in the Senate and to those political interest
groups outside the Senate who are working to oppose him.
I don't think I am making too much of this, and I know that last
night in

[[Page S6641]]

the Wall Street Journal Brett Kavanaugh wrote a somewhat apologetic op-
ed in which he said that he might have gotten a little bit too heated
at times in the hearing. He didn't specifically refer to which
statements he would take back, but that line--``what comes around, goes
around''--and those allegations about this dangerous Democratic-led
conspiracy theory weren't statements that he just came up with in the
heat of the moment. Those were statements in his prepared text. Those
were statements that he wrote down on paper, thought about overnight,
thought about again as he listened to Dr. Ford's testimony, and then
read before the Judiciary Committee: ``What comes around, goes
around.''
How does any petitioner who is aligned with any of the groups that
Judge Kavanaugh might think was involved in the political opposition to
his candidacy have faith that they will get a fair audience before the
Supreme Court when Judge Kavanaugh is on it? Do you really think, given
how angry he was, given what he believes was organized against him,
that he is going to fairly give causes aligned with Democrats a fair
shot before the Court? Do you really think he now can say that he will
be a neutral-colored umpire as a Supreme Court Justice?
Here is why this is a precedent-breaking decision that we are making.
In the past, we have actually put political people on the Supreme
Court. We have. Centuries ago we selected people for the Supreme Court
who had actually served in political positions. That was at a time when
our politics was, maybe, a little bit less heated, where there was more
opportunity for common ground. But in recent times, that has not been
the way in which we have selected people for the Supreme Court. We
traditionally select jurists.

There has been in the American public this belief that even in a
super politically charged time, there are at least nine people who are
above all of that, who are above the regular partisan barbs and
allegations that we tend too often to throw at each other. Those nine
people are on the Supreme Court, and that is really important, because
once the American public starts to think that the Supreme Court is just
another political arm, that is the day when the rule of law really
starts to fall apart.
That is why nominees to the Court are so careful not to unveil any
political bias, even if they may have one, because they don't want to
shatter that image that the American public still has, by and large,
that at least those nine people are immune from the political biases
that we hold here in the Senate.
Well, that belief has been forever compromised because Judge
Kavanaugh has told you his political bias. He has told you what he
thinks of Democrats, and now he is headed for the Supreme Court.
Senator Lee spent some time earlier this evening talking about
Federalist No. 78. Senator Lee is not the only one who has read
Federalist Papers.
Federalist No. 78 is an important one. It is where Hamilton lays out
the importance of seeing the judiciary different than the legislative
body, and Senator Lee got it right. He talks about the judiciary
exercising judgments, whereas the legislature exercises will. That is a
good way to think about the difference between the two.
Yet inside Federalist No. 78 is another idea that is really, really
important. What he says inside that document is this. Hamilton says:

I agree, that ``there is no liberty, if the power of
judging be not separated from the legislative and executive
powers.'' And it proves, in the last place, that as liberty
can have nothing to fear from the judiciary alone, but would
have everything to fear from its union with either of the
other departments. . . .

Hamilton is saying in that edition of the Federalist Papers that the
judiciary is the weakest of the three branches because it doesn't have
the power of the sword as the executive does, nor the power of the
purse as the legislative branch does. Though he admits that the
judiciary can overrule an act of Congress and that gives it power, he
suggests that so long as the executive is independent and is not a tool
or a part of the legislative branch or the executive branch, we have
nothing to fear.
Now, he doesn't lay it out in as explicit terms as I might today, but
what he is essentially saying is that the judiciary has to be
apolitical. As long as it is apolitical, you have nothing to worry
about because it doesn't have some of the inherent powers of the
branches in article I and article II.
We have broken through that wall in the nomination of Brett
Kavanaugh. By making these blatantly partisan allegations, by
associating himself in his confirmation hearing so clearly with one
side of the partisan fight inside the U.S. Congress, he has now brought
at least his seat on the Supreme Court that much closer to one of the
two departments that Hamilton feared would ultimately become joined.
Alexander Hamilton spent a lot of time thinking about the importance
and writing about the importance of an independent judiciary. Brett
Kavanaugh, by jumping into the political fray, by translating his
biases, has started to break down that wall.
Now, I don't want to be apocalyptic about this. Maybe what I am
suggesting is that it just is going to make it a lot easier to put more
people on the Supreme Court who are more and more political, ultimately
continuing to tear down that wall.
Lastly, I want to talk for a moment about the investigation that took
place regarding some of these allegations.
One of the precedent-shattering decisions that was made was the
decision on behalf of the majority to do no work to try to figure out
whether those who were making these allegations were telling the truth,
beyond a hastily scheduled hearing in which only two witnesses were
called, as compared to the Anita Hill hearings, where there were over
20 witnesses called. It was a sham of a process. That is not too strong
a word. There was not an attempt to get to the truth. There was an
attempt to provide cover, to make it look as if the Senate was having a
fair hearing.
There was also no intention to do what had been done back during the
Clarence Thomas nomination--to have the FBI go out and gather some
facts for themselves.
It was only because of a last-minute demand by a handful of
Republican Senators that the FBI went out and conducted an
investigation but was given only 1 week to do that investigation.
There is reporting in the New York Times today that suggests that the
White House intentionally limited the scope of that investigation, but,
frankly, I didn't need the New York Times to tell me that that is how
this went down. I read the report, and it was very clear in that report
that the FBI could do some things and couldn't do other things.
This is not me telling you this. I am referring to independent
reporting that only eight people were actually interviewed, and there
were clearly some subjects that were off limits in those interviews and
some things that would have been very important for Congress to know
that we cannot know because those interviews only went so far.
Now the Times is reporting that that was intentional. In fact, the
Times reports that the President's Chief Counsel told the President
that if there was a full investigation of all of the claims and all
potential claims around Judge Kavanaugh, it would be very bad for his
nomination.
So I think the FBI do good work, but not when they are given unfair
parameters around their investigation. That, in and of itself, is
another precedent-shattering decision, constraining the FBI when they
are trying to go out and gather facts for us.
Yet another precedent-shattering decision was the way in which we
were allowed to see the report. It was one of the most humiliating
things I have ever gone through as a U.S. Senator--to sit in a secure
room with 10 of my other colleagues, with 60 minutes to review a
document, look at it, digest it, and ask questions about it. The scene
was chaotic.
We are sitting there with a bunch of our colleagues, trying to share
different pieces of the report: I will read that page. You read that
page. Wait. Did I read page 6? Wait. Do you have page 7? Oh, boy, we
have to get out of here because we only have 60 minutes.
It was not becoming of the U.S. Senate, and it didn't have to go down
like that. It would have been easy for the

[[Page S6642]]

Senate majority leader to work out an arrangement with the White House
to have more than one copy of the FBI report. And, of course, the
Senate leadership could have given us more than a half day to review
that report.
Neither of those things happened, and they have consequences because
the next time there is a complication, there is incentive to do the
same thing again--to rush a nominee through the process.
I have with me a statement from a gentleman by the name of Keith
Koegler. This is a statement that comes to the Senate from Christine
Blasey Ford's lawyers. It is a statement of an individual whom the FBI
did not interview. This is a friend of Dr. Ford's who had conversations
with Dr. Ford prior to Judge Kavanaugh's nomination regarding the
allegations of assault that Dr. Ford told the committee. One of the
things he says here is that he has a copy of an email thread ``between
Christine and me'' in which he made it clear that Brett Kavanaugh was
the judge who assaulted her as a teenager.

He says: ``We exchanged those emails . . . two days after Justice
Kennedy's retirement announcement, before there was a shortlist for his
replacement.''
He is submitting this to us so that we can put it in the Record,
given the fact that it was not included in the FBI's investigation,
because they never came and interviewed Mr. Koegler.
Mr. President, I ask unanimous consent that this document be printed
in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Keith Koegler,

Palo Alto, CA, October 5, 2018.
Members of the U.S. Senate: My name is Keith Koegler. I am
one of Christine Blasey Ford's corroborating witnesses. For
those of you who aren't lawyers, the term ``corroborating
witness'' is not synonymous with ``eye witness''--someone can
be a corroborating witness without having physically been
present at the scene of a crime. Indeed, in matters involving
sexual assault, there are often no eyewitnesses.
Since attending the hearing 8 days ago, I have grown
increasingly concerned that Senators would ignore the import
of Christine's testimony in their rush to confirm Judge Brett
Kavanaugh to the Supreme Court. For the record:
I believe, with every fiber of my being, that Christine
Blasey Ford has testified truthfully about her assault by
Brett Kavanaugh. I have the benefit of knowing Christine, but
if you saw her testimony and you didn't find her credible,
you know nothing about sexual assault.
The process by which the Senate Judiciary Committee has
``investigated'' the facts relating to the assault has been a
shameless effort to protect Judge Kavanaugh. The fact that
the FBI did not interview either Christine or Judge
Kavanaugh, by itself, renders absurd any assertion that the
investigation was ``thorough.'' There are a minimum of 7
additional people, known to the White House, the Senate
Judiciary Committee and the FBI who knew about the assault
prior to the nomination who were not interviewed. I am one of
them.
Here are some of the things the FBI would have learned by
interviewing me:
I have a copy of the email thread between Christine and me
in which she made it clear that Brett Kavanaugh was the judge
who had assaulted her as a teenager. We exchanged those
emails on June 29, 2018, two days after Justice Kennedy's
retirement announcement, before there was a shortlist for his
replacement. It wasn't until July 9, 2018 that the President
nominated Judge Kavanaugh.
Christine has accurately described the sequence of events
that occurred in the months that followed, including her
interactions with the Washington Post, Representative Anna
Eshoo's office and Senator Diane Feinstein's office. I know
because I had regular contact with her during that time.
There was no ``grand-conspiracy'' to conduct a ``political
hit job'' on Judge Kavanaugh--this was always about one woman
struggling with a perverse choice: Suffer a brutal toll on
herself and her family to fulfill a sense of civic duty and
(possibly, though not likely) avoid spending the rest of her
life looking at the face of the man who assaulted her as a
teenager on the United States Supreme Court or,
alternatively, live in silence with the knowledge that she
might have been able to make a difference.
Christine has been afraid of flying her entire adult life.
Prosecutor Rachel Mitchell repeatedly challenged Christine
about her fear of flying, in an effort to impugn Christine's
general credibility. I could have provided the FBI with the
names of at least half a dozen people who have flown with
Christine and can attest to the fact that she has panic
attacks before she flies. She controls those attacks with
medicine prescribed by a doctor.
As Senator Flake anticipated in a speech before the hearing
last week, coming forward has forced Christine, her husband
and their two sons to endure treatment that no human being
should have to suffer. Within hours after the first news
story, throngs of reporters descended on their home, driving
the family (perhaps permanently) out of the neighborhood. The
family has been subjected to a near constant barrage of
harassing emails, phone calls and social media attacks
(``die, you fucking cunt''), many of them obviously
coordinated and many threatening death or bodily harm.
Because of the attacks, Christine hasn't spent more than 3
consecutive nights in the same place. They have had to hire a
security firm 24/7, and they have to be transported from
place to place in secret. Christine hasn't slept more than 3
hours at a time since September 16th. She has trouble eating.
She has had to relinquish her teaching responsibilities for
the semester. And the list goes on. Perhaps Forever.
I have no power. I can only ask you to do what is right.
Please ask yourselves if you want to spend the rest of your
lives looking at the face of Brett Kavanaugh, the man who
lied about assaulting Christine Blasey Ford as a teenager, on
the United States Supreme Court.
____

Declaration of Keith Koegle

I, Keith Koegler, hereby state that I am over eighteen (18)
years of age, am competent to testify, and have personal
knowledge of the following facts:
1. I graduated from Amherst College in 1992 with a
Bachelor's Degree in History. I earned my Juris Doctor decree
from Vanderbilt Law School in 1997.
2. I have known Christine Blasey Ford and her husband.
Russell Ford, for more than five years, and consider them
close friends.
3. We met when I was coaching their son's baseball team.
Our children are close friends and have played sports
together for years. I have spent a lot of time with Christine
and her husband traveling to and attending our kids' games.
Our families have also gone on vacation together.
4. The first time I learned that Christine had experienced
sexual assault was in early summer of 2016. We were standing
together in a public place watching our children play
together.
5. I remember the timing of the conversation because it was
shortly after Stanford University student Brock Turner was
sentenced for felony sexual assault after raping an
unconscious woman on Stanford's campus. There was a common
public perception that the judge gave Mr. Turner too light of
a sentence.
6. Christine expressed anger at Mr. Turner's lenient
sentence, stating that she was particularly bothered he it
because she was assaulted in high school by a man who was now
a federal judge in Washington, D.C.
7. Christine did not mention the assault to me again until
June 29, 2018, two days after Justice Anthony Kennedy
announced his resignation from the Supreme Court of the
United States.
8. On June 29, 2018, she wrote me an email in which she
stated that the person who assaulted her in high school was
the President's ``favorite for SCOTUS.''
9 On June 29, 2018, I responded with an email in which I
stated:
``I remember you telling me about him. but I don't remember
his name. Do you mind telling me so I can read about him?''
10. Christine responded by email and stated:
``Brett Kavanaugh''
11. In all of my dealings with Christine I have known her
to be a serious and honorable person.
I solemnly swear or affirm under the penalties of perjury
that the matters set forth in this Declaration are true and
correct to the best of my personal knowledge, information,
and belief, Executed on this 24th day of September, 2018.
Keith Koegler.

Mr. MURPHY. Mr. President, this is just one piece of evidence that
none of us saw prior to this moment that would have provided important
back up to Dr. Ford's testimony. I don't know why this person wasn't
interviewed who can testify that Dr. Ford told him of this abuse before
Judge Kavanaugh was placed on any shortlist.
I don't know if the FBI made their own decision not to talk to this
individual, whether they were time-limited so that they were unable to
get to him or whether the White House told them whom they could
interview and whom they couldn't, but this would have been really
important information for us to have beforehand.
I will end where I ended the other day. All of these decisions that
have been made, I think, have long-term consequences for this body. I
am not saying that we can't recover from this. We are all adults. I do
believe that everybody here in the Senate believes in this place and
wants it to be better. I don't run into many people on either side of
the aisle who are having a lot of fun these days, given the fact that
we can't get along on almost anything except for the budget, which is
not insignificant.
So I have to trust, as a relatively new entrant to this place, that
we can

[[Page S6643]]

do better, that we can try to learn from what has happened here. The
damage has been done at this point to survivors of sexual assault who
are going to be thinking twice about coming forward because they are
not going to be believed. The damage has been done to the precedent
surrounding nominations to the judiciary. The damage has been done to
the idea of objective truth and the belief that folks who are applying
for important jobs should tell the truth. But I have faith that we can
learn from what happened here and try to be better the next time.
Ultimately, what I think about a lot and what I have thought about a
lot these last few weeks is this: Why Brett Kavanaugh?
I come back to where I began. At the outset, I said that our standard
should be educated by the fact that there is not one person in the
world, in the United States, who is qualified for this job. There are
lots of them. So if you have serious doubts or reservations about an
individual, you can move on to the next person. That is what George
Washington did when John Rutledge was rejected by the Senate. He had
somebody else who was great in reserve--a great early American, Oliver
Ellsworth.
There are, no doubt, other conservative jurists who would probably
fulfill most of the jurisprudential aims of the Republican majority
just as well as Brett Kavanaugh. It can't be because Brett Kavanaugh is
the essential man.
So given all of these doubts, given all of these allegations, given
his precedent-breaking performance before the Judiciary Committee, why
stick with Brett Kavanaugh? This is what I come back to when I try to
answer that question for myself.
I know that it is hard being a Republican today. Your party doesn't
look like it did 10 years ago because you have a President who really
doesn't have an ideological core. He doesn't have a set of beliefs. He
is a cult of personality. He makes it up as he goes along. So it is
difficult being a Republican in Congress today because the party is
just fundamentally different than it was 5 years ago, and there is very
little that binds together a President without an ideological core and
Republicans in the Senate who do have a set of beliefs that they are
fairly regularly consistent about. I know that is uncomfortable. So I
fear that the reason the Senate Republican majority is sticking with
Brett Kavanaugh is because the one thing on which can agree with this
President is your antipathy for the Democratic minority.
There is this theme--this phrase on social media--that gets used by
the right, called ``owning the libs.'' It is the idea that you win if
you dominate your opponents. Winning isn't about passing a bill.
Winning isn't about doing something good for the country. Winning is
about owning your political opposition.
I worry that is what this is about--that we are sticking with Brett
Kavanaugh even with all of these problems and questions that surround
him because the worry is that to give up on him and move on to somebody
else would be a show of weakness and would be interpreted as a victory
for Democrats. The one thing that binds together congressional
Republicans and this President is an unwillingness to give Democrats
any perception of victory.
Now, it wouldn't really be a victory for Democrats because we know
there would be another conservative Justice--maybe, one even more
conservative than Brett Kavanaugh--who would be coming down the pike.
But maybe in the short term, it would be scored that way, and thus, it
becomes unacceptable.
It is sort of the definition of power politics--dominance no matter
the cost, no matter the policy implications, no matter the precedent. I
might be wrong about this. It may be that my colleagues just feel like
Brett Kavanaugh is telling the truth on everything, down to the
definition of some of those terms, or maybe they see a talent in him
that is unique that the rest of us don't see.
But I worry that what matters in this place these days is just
winning, and I worry about that for Democrats too. I worry that
ultimately what drives us when we get up in the morning in Washington,
DC, these days is just beating the other side--that it is just a game,
that it is just an athletic contest, and that we have become what the
news media and the cable shows want us to be, a sporting event.
I think that of late my Republican colleagues have been more guilty
of this than Democratic colleagues. I have that bias, I admit it. I am
allowed to have it as a partisan, but I believe it exists on both sides
of this body. This, I would argue, is just the worst episode of that
desire for political dominance and something that we should all, in the
wake of this nomination, step back from and think long and hard about.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Gardner). The clerk will call the roll.
The assistant bill clerk proceeded to call the roll.
Ms. CORTEZ MASTO. 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. CORTEZ MASTO. Mr. President, I rise today as the Senate has been
called upon to fulfill our constitutional duty to give advice and
consent on President Trump's nominee to the Supreme Court, Brett
Kavanaugh.
In the past, Presidents worked with a bipartisan Senate to appoint
someone who understood the importance of precedence and transparency,
who respected the independent integrity of the highest Court in the
land. Unfortunately, that did not happen during the nomination process.
Instead, the process was flawed to fast track a nominee without a full
vetting for political gain.
Brett Kavanaugh was handpicked by the Federalist Society, a rightwing
lobbying organization dedicated to overturning Roe v. Wade. Why?
Because, as he has made clear on several occasions, President Trump
wants to stack the Court with Justices who will overturn Roe v. Wade.
Now, I am new to the Senate, and as long as I have been here, I have
been told that this is not regular order. As we went through this
confirmation hearing, unfortunately, I found it, along with my
colleagues, to be fast tracked.
I take very seriously my role of advice and consent when it comes to
a nominee, and I think we all as Senators have an equal vote. We should
all have access to all of the information and a full vetting of any
nominee who wants to sit on the highest Court for a lifetime
appointment.
Think about it--a lifetime appointment. There are only nine members.
This is something that we should all look for--the right person--and
everyone should have a full vetting, but this hearing was fast-tracked.
Not only was it fast-tracked, but we did not have access to all of the
documents necessary to determine whether Brett Kavanaugh had the
correct judicial philosophy and the judicial temperament and
impartiality that is necessary for somebody to sit on the highest Court
of the land.
Not only were we limited in the number of documents, but what little
documents we did get, unfortunately, on some of them were marked
``committee confidential'' in an effort to prevent Members from using
documents to question the witness. By unilaterally declaring them
committee confidential, many of my colleagues in the Senate Judiciary
Committee hearing were unable to adequately question Judge Kavanaugh. I
am told that this process of marking ``committee confidential'' is
without precedent.
Republicans claim that Chairman Leahy also accepted documents on a
``committee confidential'' basis during the Kagan nomination. Those
documents were processed by the National Archives, not private,
partisan lawyers, and Republicans did not object.
By the time of her hearing, 99 percent of Elena Kagan's White House
records were publicly available and could be used freely by any Member.
In contrast, the committee has only seen 7 percent of Brett Kavanaugh's
White House records and only 4 percent were made available to the
public. No Senate or committee rule grants the chairman unilateral
authority to designate documents ``committee confidential'' and
prohibit their public release. Neither the rules of the Senate nor the
rules of the committee authorize the unilateral designation.
There was no committee action and Ranking Member Feinstein sent a
letter stating she did not agree with a

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blanket designation, and she asked the chairman to work with her to
identify the subset of documents that should remain confidential, and
he refused.
But the chairman released thousands of documents himself.
Specifically, he released thousands of documents that had previously
been marked ``committee confidential,'' after consulting with Mr.
Burck. If these were committee confidential documents, then, the
chairman's actions would be a violation of Senate rules. The Senate
rules provide a penalty for disclosing ``the secret or confidential
business or proceedings of the Senate'' but it requires a vote or a
committee action to conduct confidential business or proceedings.
Democrats cannot be held to a different standard. Chairman Grassley
has asserted that Mr. Burck has sole authority to decide what documents
may be used to question Judge Kavanaugh and sole authority to decide
which documents may be released to the public. However, he has failed
to cite any rule or statute that gives Mr. Burck any authority.
We should not move forward with hearings when we only had a fraction
of the nominee's record, and the most significant document we had
remains hidden from public view.
The chairman claimed that he provided ample opportunity for Democrats
to clear committee-confidential documents for use at the hearing, but
he refused the request of several Members to make documents on a number
of topics public.
I also want to make it clear that as I watched that hearing, there
were allegations that Members of the Senate didn't even show up to take
a look at these confidential documents, so why were we complaining. I
will tell you what, I showed up. I was there for 3 days looking at all
of these documents because I thought it was necessary, even if we were
going to be limited in what we could see and what we could talk about.
I have a voice equal like everyone else, and I should have access to
those documents and figure out if I had the opportunity to talk to
Judge Kavanaugh or talk with my colleagues about it, then I should have
access to those documents, but even when we had access, the chairman
demanded that Democrats send him their documents for preclearance by
his staff, President Bush's lawyers, and the White House.
My understanding is, never before have minority members of the
committee been required to identify and preclear the topics and
documents they want to discuss with a Supreme Court nominee with the
chairman or outside private lawyers in the White House; never has a
majority asserted unilateral authority to preclear what issues the
minority party can even ask a nominee.
The idea that Democrats have to ask Republicans to preclear their
questions in a Senate Judiciary Committee hearing is outrageous. If the
chairman, Bill Burck, and the Trump White House were truly interested
in a transparent process, Mr. Burck and the White House could make the
White House Counsel records public now, as President Obama and former
President Clinton did for the Kagan nomination, but we still don't have
access to all of the documents.
We still have a process that is broken. We still have a process that,
unfortunately, did not provide all of the Senators the opportunity to
have a full vetting of Brett Kavanaugh. I took my time. I reviewed
Judge Kavanaugh's record. I looked at his cases, his written
statements; I listened to his comments in the hearing; I went and
viewed the committee-confidential documents. I wanted an opportunity to
meet with him. Unfortunately, that never happened, so I couldn't
question him myself.
Based on all of the information and based on taking my time--like I
did with our previous nominee because it is that important that we get
the right person on the bench--in his statements and in his writings
and opinions, it was clear to me that Brett Kavanaugh has shown he does
not respect precedent. He does not respect a woman's right to choose.
He does not respect workers' rights.
If confirmed, I believe Judge Kavanaugh's extreme activist judicial
philosophy will pose a threat to women, our environment, our
constitutional separation of powers, and our fundamental civil rights,
but it is not just Brett Kavanaugh's judicial philosophy that troubles
me.
Last week, Judge Kavanaugh testified before the Senate Judiciary
Committee to defend himself against sexual assault allegations. He was
asking for our vote for a lifetime appointment to the Supreme Court--
one of the deepest and most profound honors this Nation can bestow upon
a citizen. This nominee was interviewing for a job in front of the
American people, and he was belligerent, evasive, and aggressive. This
nominee, who currently sits as an appellate court judge on the DC
Circuit Court, disregarded all demeanor and respect for impartiality
and independence by accusing the Democrats of engaging in ``a
calculated and orchestrated political hit fueled with apparent pent-up
anger about President Trump and the 2016 election, fear that has been
unfairly stoked about my judicial record, revenge on behalf of the
Clintons, and millions of dollars in money from outside left-wing
opposition groups.''
He then took it even further by stating: ``And as we all know in the
United States political system of the early 2000s, what goes around,
comes around.''
``What goes around comes around,'' are those the words of an
impartial judge? Of course not. During the question-and-answer period
with the Senators, he was belligerent, impatient, and aggressive toward
anyone who pressed him to get to the truth.
His demonstrated lack of temperament and impartiality is another
reason I cannot support him. It is also why over 2,400 law professors,
from respected law schools across this country, penned a letter to the
Senators to state that the Senate should not confirm Judge Kavanaugh--
some of these very law professors who also appeared before the U.S.
Supreme Court; some of these very law professors who also practiced and
teach at Yale and Harvard. They wrote:

Judicial temperament is one of the most important qualities
of a judge. A judge requires a personality that is even-
handed, unbiased, impartial, courteous, yet firm, and
dedicated to a process, not a result.

They further stated:

At the Senate hearings on September 27, Judge Brett
Kavanaugh displayed a lack of judicial temperament that would
be disqualifying for any court, and certainly for elevation
to the highest Court of this land.

Former Supreme Court Justice John Paul Stevens, a Republican
appointed by President Ford, stated similar concerns:

When I watched Judge Kavanaugh's testimony, I didn't see a
fair and impartial Justice. I saw a man who is blinded by
rage and ideology. As a sitting judge, Brett Kavanaugh knows
better.

His accuser, Dr. Christine Blasey Ford, testified before the Senate
Judiciary Committee for 4 hours. She was poised, serious, and credible
recounting what was clearly one of the most scarring, traumatic
experiences of her life, and she did it on live television for all the
world to hear. She did it in the face of death threats. She did it at
the risk of damaging her credibility and career. She had nothing to
gain. She has done a profound service to everyone whose life has been
touched by sexual assault or abuse.
Dr. Ford, I believe you, and I thank you for your courage in coming
forward. I believe in a fair and independent process for people who
have been accused of serious crimes like sexual assault, and the
process should include a neutral investigation that is thorough and
nonpartisan because it will hold a perpetrator accountable or exonerate
the falsely accused. But that fair and independent process did not
occur this time. I am glad some of my colleagues stood up to make sure
the FBI had a chance to reopen its background investigation. I will
tell you what, after reading the recent FBI report, it is clear
Republican leadership limited its scope, and I say that as somebody who
not only has been a prosecutor for 10 years, 8 years the attorney
general of the State of Nevada, who has conducted criminal
investigations and oversaw peace officers who did the same thing.

What they did not do, they did not interview Dr. Ford, nor obtain
from her the important medical records that would corroborate her
testimony. In fact, her attorneys wrote to the FBI offering up not only
additional witnesses

[[Page S6645]]

but making the statement that if they were to interview Dr. Ford, 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. I am here to tell you, corroborating evidence isn't just
in the form of witness statements; it is in the form of documentation
that is key, and that was never recovered by the FBI.
I will tell you, the potential witnesses that potentially the FBI
could have talked to, we know--we know because they came forward out of
a civic duty and they went public, and the FBI still did not talk to
them. We know Dr. Blasey Ford's husband, Russell Ford, said Christine
shared the details of the sexual assault during a couple's therapy
session in 2012. She said that in high school, she had been trapped in
a room and physically restrained by one boy who was molesting her while
another boy watched, and Dr. Ford's husband said: ``I remember her
saying that the attacker's name was Brett Kavanaugh'' in 2012--2012.
Along with her husband, Adela Gildo-Mazzo, a friend of Dr. Blasey
Ford, came forward and said:

In June of 2013, Christine said that she had been almost
raped by someone who was now a Federal judge. She told me she
had been trapped in a room with two drunken guys, and that
she then escaped, ran away, and hid.

A third witness, somebody who could have corroborated Dr. Ford's
statement, Lynne Brookes, Brett Kavanaugh's college friend, who said:
``There is no doubt in my mind that while at Yale, he was a big
partier, often drank to excess, and there had to be a number of nights
where he does not remember.''
So I know--and unfortunately too often we have seen in this
particular case an FBI supplemental report that was not thorough. In
addition, after I reviewed the summary of the report and realized we
were missing information, the additional corroborations would have also
gone to Debbie Ramirez's allegations, but the FBI did not interview
important witnesses to corroborate Debbie Ramirez's allegations.
We now know--because they have been again willing to come forward
after seeing what has been happening through these hearings--Kenneth
Appold, a suitemate of Brett Kavanaugh at Yale, who is now a professor
at Princeton, stated: ``I can corroborate Debbie's account.'' He said:
``I believe her because it matches the same story I heard 35 years ago,
although the two of us have never talked.'' Professor Appold was never
interviewed.
Likewise, James Roche was also a roommate of Brett Kavanaugh, and he
said: ``Although Brett was normally reserved, he was a notably heavy
drinker, even by the standards of the time, and that he became
aggressive and belligerent when he was very drunk.''
Likewise, Chad Luddington, a college classmate came forward: ``I can
unequivocally say that in denying the possibility that he ever blacked
out from drinking and in downplaying the degree and frequency of his
drinking, Brett has not told the truth.''
They were not interviewed by the FBI. So now, because we have only
limited information, all Senators are left with a lack of a full
understanding of the facts surrounding the allegations against Brett
Kavanaugh.
The questions swirling around Brett Kavanaugh get at the very heart
of our responsibility as Members of the U.S. Senate. We are not here to
be a rubberstamp on the President's nominees. We are a check and
balance on his power. We are here to work with him to make decisions
that are right for the American people. That means we listen to our
constituents. That includes women and men who have buried their
experiences of trauma for far too long.
I have received letters from my constituents from all over Nevada
sharing their stories of survival. I heard from men and women in our
military who were struggling not just with the effects of PTSD but with
the experience of being sexually abused.
I recently met with women who led the campaign to codify a woman's
right to choose in the Nevada State Constitution, and they all asked me
to oppose Brett Kavanaugh's nomination, and I stand with them. I stand
with survivors. I stand for the right of every American woman to make
her own healthcare decisions. I believe Dr. Christine Blasey Ford. I
believe in the integrity and independence of our judicial system.
I condemn Brett Kavanaugh's confrontational and partisan behavior,
and I condemn the handling of this nomination by Senate Republican
leaders.
We must work together, in a bipartisan way, and restore our
constitutional role of advice and consent. This is about something
bigger than any one nominee. It is about the integrity of our Nation's
institutions. It is about the core functions of our democracy. We can't
allow partisan politics to eat away at the checks and balances
enshrined in our Constitution. We have to return to common decency and
regular order. Anything less is below the dignity of the American
people and the great Constitution we swore an oath to faithfully
support.
I encourage all of my colleagues to join me in voting against this
temperamentally unfit nominee.
Thank you.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Perdue). The clerk will call the roll.
The assistant bill clerk proceeded to call the roll.
Mr. SCHATZ. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SCHATZ. Mr. President, the Senate should demand a better nominee
for the Supreme Court. These last 2 weeks have torn our country apart,
but even before these allegations against Judge Kavanaugh became
public, there was enough in Judge Kavanaugh's record to cause me to
vote no.
His record is clear. As a Justice, he will damage women's rights,
civil rights, the environment, voting rights, and economic fairness. He
will also damage Native Hawaiian self-determination.
Let's start with Native Hawaiian. In a Wall Street Journal op-ed, he
wrote that Native Hawaiians didn't deserve protections as indigenous
people. He wrote an amicus brief in the case Rice v. Cayetano, arguing
that Hawaii violated the Constitution by permitting only Native
Hawaiians to vote in their elections for the Office of Hawaiian
Affairs--the agency charged with working to advocate for the Native
Hawaiian community.
These views come from a lack of knowledge of the history of Native
Hawaiians, as well as Federal law and policies related to U.S.
indigenous people.
Based on nothing at all, he thinks indigenous people are just another
race. In his words, ``Hawaii's naked racial spoils system . . . makes
remedial set-asides and hiring and admissions preferences look almost
trivial by comparison.''
He also said: ``[I]f Hawaii is permitted to offer extraordinary
privileges to residents on the basis of race or ethnic heritage, so
will every other state.''
This is wrong on policy. This is wrong on the law. This is wrong
historically, but it is also important to recognize the tone here.
``Remedial set-asides,'' ``racial spoils''--this is not someone who
understands the plight of indigenous people and the history of our
country as it relates to indigenous people. These views have serious
consequences for Alaska Natives and also for American Indians.
The Federal Government's protections for indigenous people are built
on tenets of the Constitution, Federal statutes, legal precedent, and
congressional actions. They exist against the backdrop of U.S.
injustice against indigenous American Indian, Alaska Native, and Native
Hawaiian communities. Judge Kavanaugh's misinformed views on the status
of indigenous people are alarming.
His views on women are also alarming. There is no doubt in my mind
that Judge Kavanaugh will undermine reproductive rights. He knows
better than to say in public that he is going to vote to overturn Roe
v. Wade. That is not what they do. The Federalist Society trains these
people really well to not say what they are going to do. There is a
reason everybody who wants to ban abortion is so enthusiastic

[[Page S6646]]

about this judge. They are not dumb. They understand his views, and
they understand the one thing you can't say is, yes, I will vote to
overturn Roe.
Here is an email from his days in the Bush administration--which, by
the way, the Republicans tried to hide from the public. He said: ``I am
not sure all legal scholars refer to Roe as the settled law of the land
at the Supreme Court level since the Court can always overrule its
precedent, and three current Justices on the Court would do so.'' This
is exactly why the Senate deserves to know if Judge Kavanaugh would
overrule this precedent. I think he will.
Time after time during the hearing, he evaded answers to that
question, but we already know he embraces restrictive limitations on
abortion that would, in practice, deprive women of their constitutional
rights.
Judge Kavanaugh argued in one case that the Federal Government can
and should override a young woman's constitutional right to seek an
abortion because she was an immigrant.
This young woman had complied with the requirements of State law to
make that decision herself. She did not need the Federal Government to
transport her, pay for, or in any way facilitate the procedure. She
just needed them to let her out of detention to do the procedure, but
they didn't want to. They wanted to pressure her to voluntarily deport
herself. They put up artificial barriers to prevent her from exercising
her constitutional right. Judge Kavanaugh endorsed those barriers.
Making a young woman wait weeks to obtain an abortion for no reason
based on the Constitution, Federal or State law, or even public policy
is an undue burden. Republicans who worry about the overstepping of the
State should care about this.
Judge Kavanaugh's dissent shows his lack of respect for Roe, but even
if he avoids directly overturning Roe, he could be green-lighting State
or Federal laws that, in a practical effect, outlaw abortion.
Judge Kavanaugh would also rip apart of the ACA, if given a chance.
He ruled to limit access to contraception under the ACA, and he has
made it clear he thinks the Affordable Care Act is a ``significant
expanse of congressional authority--and thus also a potentially
significant infringement of individual liberty.'' A significant
expansion of congressional authority and potentially a significant
infringement of individual liberty--now that sounds like something a
Republican colleague would say. It is just a view about the Affordable
Care Act which that is to the extent we are collecting taxes and
establishing some statutory mandates to try to make sure more people
have healthcare that is affordable, a zero-sum game. And the more
people who have healthcare, the less liberty either the rest of us have
or maybe even those people have. I don't really know how it works, but
that is a view.

It is a view we hear, and I respect my Republican colleagues for
their views. I believe they are sincere in those views. That is not
normally the kind of thing you hear from a judge. He has a clear view
about the Affordable Care Act that isn't based in jurisprudence; it is
based in his long history as a Republican operative.
I want to be very clear. A Republican operative sounds like an
epithet. It sounds like a personal insult. I work with a lot of
operatives. They tend to be Democrats. Operatives--not all of them--
some of them are pretty cool. Some of them are honorable. A lot of them
are really effective. It is not a bad thing to be a political
operative. Someone has to run a campaign. Someone has to mobilize
voters. It is part of our democracy, like it or hate it. It is just
that we don't put them on courts at all. It is just that we have
literally never put an operative from either political party on the
highest Court in the land.
In his speeches, Judge Kavanaugh has left not-so-subtle bread crumbs
about how he would rule on the constitutionality of the individual
mandate, which is really the linchpin of the ACA. In a lecture at the
Heritage Foundation, he highlighted that the majority of the Supreme
Court agreed that ``the individual mandate, best read, could not be
sustained as constitutional.'' To him, the Chief Justice upheld the ACA
only because he tried too hard to avoid deciding the constitutional
issue. The whole speech is about how Judge Kavanaugh would not try too
hard to avoid the constitutional issue. The risk that he will provide
the vote to strike down the healthcare law is not a hypothetical.
Now, there were a lot of what most people in the bar thought were
rather nonserious challenges on the Affordable Care Act in various
circuit courts across the country, but I think we have learned that the
Supreme Court has an interest in the Affordable Care Act, maybe even a
kind of unhealthy obsession with the Affordable Care Act. So the idea
that these seemingly frivolous lawsuits will not be successful, I
think, is belied by the enthusiasm with which the Supreme Court wants
to take these circuit court decisions which are getting appealed and
rule on them.
Challenges to the ACA could come before the Supreme Court as early as
this term. So I think it is really important for people to remember
that. Listen, we all have our talking points on both sides of the
aisle. I understand that. It is not a theoretical risk. It is a real
risk that ACA is gutted; that the individual mandate is gutted; that
protections for people with preexisting conditions is gutted; that what
they call essential health benefits could fall away; that the whole
architecture of our healthcare system could be gutted in this term.
I am also voting no because Judge Kavanaugh puts corporations above
people--again, not a rhetorical flourish. This is most apparent in his
opinions about the environment. I want you to know about a case which
concerned the EPA's authority to regulate mercury emissions. The
mercury rule was based on decades of research that showed devastating
health impacts of mercury on the brain, on the lungs, and on fetuses.
The Obama administration found that the mercury rule prevented as many
as 11,000 premature deaths by reducing heart and lung disease.
Let's be clear. It happened during the Obama administration, but this
isn't the EPA; these are professional scientists and researchers. These
are civil servants. They are not like Obama appointees who have some ax
to grind with a particular chemical. They just found that this chemical
is dangerous to people. The EPA was directed by law to study the public
health hazards of emissions from electric utilities, including mercury,
and to regulate emissions ``if appropriate and necessary.'' That is the
standard, ``if appropriate and necessary.'' Judge Kavanaugh thought the
mercury rule was inappropriate because it didn't take into account the
cost to the electric utilities to implement.
I mean, think about that. You see a law, and it says ``regulate
emissions where appropriate and necessary,'' and then you are a judge
and you read that law and you say: Listen, Agency, you didn't think
about the corporations enough. So somehow that is violative of the law.
To arrive at his decision, he substituted his own judgment of what is
``appropriate'' for EPA. ``Appropriate'' means saving 11,000 lives. For
Judge Kavanaugh, it meant not imposing too many costs on polluters.
He has and will continue to fight any attempt by the EPA to keep up
with evolving threats to public health from polluted air and water and
from climate change. Even though Supreme Court precedent was clear that
greenhouse gases fit with the Clean Air Act's ``capacious definition of
air pollutant''--in other words, greenhouse gases are a pollutant.
Everybody knows that. It is not a dispute among scientists or even
among regular people who understand that climate change is real, but
Judge Kavanaugh pushed back. When the majority of the DC Circuit
followed this precedent in another EPA case, he dissented. The
conservative Justices on the Supreme Court were convinced, and they
voted 5 to 4 to strike down the EPA's rule. There will be a lot more of
that when Judge Kavanaugh joins them.
When Judge Kavanaugh is confirmed, he will use a far-right doctrine
to block Federal agencies from protecting Americans' health and safety.
He wants to do away with something called Chevron deference, which
prevents judges from substituting their judgment for that of Congress
or a Federal agency.
Here is how it works. When Congress passes a law, you can't--
especially as it

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relates to regulations about pollutants. We don't know exactly--we
don't know all the science. So what we say is, for instance: Keep the
air clean. Keep the water clean. You, Agency, figure out what is most
important to ban, regulate on, and otherwise monitor. So it delegates
that authority to Federal agencies which have the technical expertise
and knowledge to implement and enforce the law.
Without that authority, we wouldn't have the rules to protect our air
and water from pollution. We wouldn't be able to regulate access to new
dangerous drugs. We wouldn't have rules to protect consumers from
unsafe or predatory products and services because everything is
supposed to be legislated.
If you don't believe in Chevron deference, then--we are supposed to
every year come up with a new list of chemicals to ban or not ban. What
do we know about that? Seriously, what do we know about that? Do you
think maybe the lobbyists might be involved in that process more so
than if you let the administrative agencies do that?
For the life of me, I don't understand--I mean, I do understand why
people want to get rid of Chevron deference, but I don't understand the
legal justification for it. The reason they want to get rid of Chevron
deference is because it makes life safer for big corporations and less
safe for the rest of us.
A vote for Judge Kavanaugh would be a vote against Chevron deference.
It would allow judges to decide what a law means without considering
Congress's intentions or listening to the Agency.
Perhaps most worrisome for me is Judge Kavanaugh's views on Executive
power. The context here is, the Federalist Society provided a list to
Donald Trump and Donald Trump said, ``Looks good to me,'' as part of
his sort of solidifying the primary, and then Judge Kavanaugh got added
at the end. I mean, after the initial list was established, then one
person got added at the end.
In terms of their jurisprudence, there is not a big difference
between Judge Kavanaugh and the rest of the people on the list, but
here is the difference: Judge Kavanaugh has a very unique view of
Executive authority and what a President is subjected to in terms of
the law.
In his writings and rulings, he has made clear that he thinks a
President can choose not to follow the law if he thinks it is
unconstitutional. Can you imagine that a President can just say: ``That
law is unconstitutional, so I refuse to enforce it''?
Congress couldn't do anything about it because it would all go to the
Supreme Court where Judge Kavanaugh sits. Do you think Donald Trump
might like that idea? I think Donald Trump might like that idea.
Judge Kavanaugh thinks the President is literally above the law, not
just in terms of not enforcing statutes passed by the U.S. Congress; he
has made it clear in speeches and writings that he does not think a
President can or should be investigated or indicted for criminal
offenses while in office.
He said that maybe Nixon was wrongly decided, referring to the United
States v. Nixon. It is a 1974 decision in which the Supreme Court
unanimously held that President Nixon had to comply with a subpoena to
turn over the tapes of his conversations in the White House. He wrote
in the Minnesota Law Review in 2009 that he thinks a President
shouldn't be indicted for breaking the law. Let me repeat that. He
wrote in the Minnesota Law Review in 2009 that he thinks a sitting
President shouldn't be indicted for breaking the law.
Now, near as I can tell--I am not a lawyer--but near as I can tell,
this is the main difference between Judge Kavanaugh's views and the
rest of the people on the Federalist Society list. I mean, the head of
the Federalist Society, before Judge Kavanaugh was nominated, was
asked: Do you have any favorites? He said: Anyone on this list would be
great.
It is just weird to me that the President of the United States picked
this guy, a Bush person. It is not normally his preference to pick a
Bush person, but this person has this really specific view about how
powerful a President should be, and that is really worrisome.
He also wrote that there is ``a serious constitutional question
regarding whether a President can be criminally indicted and tried
while in office.'' This is the tip of the iceberg.
Judge Kavanaugh has also asserted that the President has ``absolute
authority'' to pardon all offenders for any crime at any time, even
before a trial or a charge; even before he or she is charged. Does he
mean all offenders, even the President? Judge Kavanaugh may have
refused to answer this question at the hearing, but his expansive view
of Executive power speaks for him.
His view puts the President above the law, and this is dangerous
because right now Special Counsel Robert Mueller is in the middle of an
investigation into the President's campaign. Instead of following
Supreme Court case law, Judge Kavanaugh may try to undermine that
investigation and stop attempts to subpoena the President or to collect
evidence.
The context, of course--sometimes we in the Senate pretend not to
know things we know. There are a lot of smart people here, but we
sometimes don't say what is actually going on, which, as everybody
knows, even people who are loyal to him--or people who pretend to be
loyal to him but privately grouse about him--the President demands
loyalty to him, not to the Constitution, not to the country. The
President is a person who demands personal loyalty. He could have
picked anybody, but he picked Brett Kavanaugh, the one judge who
believes the President is above the law and should be left alone.
These issues have been clear since the nomination, and that is why I
pledged to vote no. Others came to light last week when the whole
country had the chance to hear from Christine Blasey Ford and Judge
Kavanaugh. What we saw, I think, was alarming for a lot of people.
Whatever your view on all of the stuff I just talked about, actually,
we saw behavior that was just weird. It was kind of manic. It was
angry. It was wild-eyed. It was threatening. I mean, we talk--listen, I
was in the State house of representatives, so I wasn't in a position to
deal with advice and consent on State judges, so I hadn't dug into what
the criteria were when you are considering a judge.
So when I got to the Senate--I am in my sixth year--there were a lot
of conversations about judicial temperament. You think about
qualifications. You want to make sure the views are not too extreme.
Then you think about temperament. This thing about temperament is being
totally ignored by the majority because if you care at all about
temperament, if you care at all about the idea of equal justice for
all, if you care--and we are so close to the U.S. Supreme Court
physically right now. If you care about that magnificent building and
the idea that anybody going before that highest Court in the land is
going to get a fair shake, it is just vanishingly unlikely that if you
are with the National Resource Defense Council or NARO or Planned
Parenthood or MoveOn, or whoever he views as part of this attempt to
smear him, they are going to court and they are going to be a litigant
and they are going to be looking at Judge Kavanaugh saying: Oh, yes, he
is undecided.
This is the important thing: Some people will argue that he is going
to be an evenhanded jurist, that he sort of lost his cool, but he
cleaned it up in this most recent Wall Street Journal editorial. Maybe.
I don't think so. I think it is implausible. The point is, he can't
even appear--you are not supposed to even appear to be anything less
than impartial, and he ripped the mask off.
Again, he is a Republican. That is fine. I get along with
Republicans--not all of them, but I get along with Republicans--and he
can have all of those views. It is just that once you start
articulating really partisan views, especially in the context of a
nomination process, then the mask is off, and you don't belong on the
Court. You have to display the proper temperament on and off the Bench
at all times. ``What that means is in dealings with one's colleagues on
the bench, having an open mind, being respectful of a colleague's
views, being respectful of the lawyers who come before the court and
not treating them disrespectfully, but to have proper respect for the
lawyers on the court.''

[[Page S6648]]

I am quoting Judge Kavanaugh, and I did not see that Judge Kavanaugh
last week.
I just want to make one minor point about that. Whatever we think of
that Wall Street Journal editorial, besides the fact that there was no
actual apology, it wasn't like a spur-of-the-moment thing where he kind
of lost it and said a few things he didn't mean to say. He wrote the
speech the day before. That speech was what he wanted to say. That is
what he intended to say. So it is not like the passion--I have said
lots of things I wish I didn't say, but generally when I write them
down, I can't fairly characterize that as a mistake. Maybe I made a
factual error. Maybe I stumble. Maybe I shouldn't have said one
paragraph.
That whole thing was a mess. That whole thing was an emotional mess.
That actually should have been disqualifying, and that should have been
the moment where Members of the Republican Party just went over and
said: Listen, we have 18 conservative judges. Any of them could get
confirmed. This guy is not right for the Bench. This guy is going to be
bad for the institution of the Court.
I want to talk a little bit about the Federalist Society, an
organization with a mission to alter the legal landscape of the United
States. For decades, the Federalist Society has worked to remake the
Federal judiciary with the view of power of corporations, Executive
authority, social conservatism, and the protection of privilege that is
out of the legal mainstream. As Amanda Hollis-Brusky, a professor of
politics at Pomona College and the author of ``Ideas with
Consequences,'' a study of the Federalist Society, said: ``The idea was
to train, credential, and socialize a generation of alternative
elites.''
This is because we have Republican Presidents who would nominate and
get confirmed Justices that were Republican but not as reliably
conservative as they wanted. So the Federalist Society, formed for the
purpose of saying, you know, we are not going to get fooled again. We
want our stuff. We want our outcomes. We don't want you to actually
fairly consider the law and the Constitution and just call balls and
strikes and all that. That is what they say. They set up this apparatus
to do the opposite; to be very outcome-oriented and to be very
conservative. That is what the Federalist Society has done.
This nomination is the latest success story of this ambitious
enterprise, and his confirmation will, unfortunately, entrench these
judicial views in the Supreme Court for decades to come.
While his views on some issues are known, the Senate and the American
people still don't have a full picture of who he is, and that is
because at every turn there has been a concerted effort to hide the
documents.
Now, this feels like 10 weeks ago, but before the last scandal, what
I thought was terribly scandalous was that this man had been in public
life, he worked for the government, and so there are tons of records of
that, right? You can FOIA it. Most of it is archived because he worked
in the White House. In the end, the committee didn't receive 95 percent
of the documents related to his public life.
Now, we are not talking about a fishing expedition. We are talking
about when he worked in the White House, where are the records of that?
We didn't get to see any of it. It was, in my view, a misuse of the
process in the Judiciary Committee related to what is considered
committee confidential.
In the past, committee confidential essentially means anything that
is personally sensitive or anything that is either secret or top
secret. Committee confidential is a narrow thing, but what they decided
to do is say 95 percent of all the records we just don't get to see. So
the U.S. Senate and the public doesn't get to review 95 percent of the
records related to Judge Kavanaugh's public service.
These are the reasons I find it hard to believe Judge Kavanaugh is
going to have a successful vote tomorrow; and I do understand he will
have a successful vote. I guess it is today because we are 3 in the
morning.
Judge Kavanaugh's judicial record, his temperament, his views on
Executive power should be enough to scare away most Members of this
body.
This is a dark day for the Senate, but more important than that--I
worry very much about this institution. I worry about the way we have
conducted ourselves. I worry about the bastardization of this process.
I worry about our ability to come back together. I worry about, the
Senate's traditional role, when it is working, is to calm everybody
down, is to deal with stuff that is hard. It seems to me that at every
stage, instead of being the cooling saucer, instead of being a place
where we can deal with tough issues, we serve to inflame the passions
of folks on both sides, to cause pain across the country, and to not
get to the truth. More important than the institutional aspect, it is a
dark day for vulnerable people, women in particular, people of color,
indigenous peoples, people with preexisting conditions, people who
struggle economically, union members.
The country is feeling torn apart, and the Senate has traditionally
played a role in calming tensions down, moving methodically, being
fair, and this process is not that. We need another nominee.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant bill clerk proceeded to call the roll.
Mr. MERKLEY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Sullivan). Without objection, it is so
ordered.
Mr. MERKLEY. Mr. President, I have a lot of concerns about the
possibility of Brett Kavanaugh serving on the Supreme Court. They are
concerns that come from many different directions, but let's start with
the precedent that this body has not reviewed his full record. We
haven't taken any look at all at the 3 years he was Staff Secretary to
President Bush because the President's team intervened and asked us not
to. And a couple Members of this body collaborated with the White House
to deny everybody else here the possibility of looking at his record.
The thing is that each and every one of us has a responsibility to
review the record. This exceptional situation in which a few Members
have made it impossible for anyone in the body to fulfill their
constitutional responsibility is an extraordinary abuse of power in
this body.
Then we have the President of the United States reaching out in other
ways--in ways we have never seen before--and putting the stamp of
Presidential privilege on some 100,000 documents. These were documents
from the time that Brett Kavanaugh served as a White House Counsel. We
received a few documents, and there were a lot of troubling things in
those documents, but 100,000 documents were censored by the President
of the United States.
I will just remind my colleagues that the President is not supposed
to interfere with the work of the Senate in the confirmation process.
It is called the separation of powers. Maybe some of you would like to
pull out your Constitution and study it for a moment and realize that
the President nominates but doesn't get to decide what this body
reviews. Yet that stamp of Presidential power, untested, has done so
for, as far as we can tell, the first time in U.S. history.
Then we have the fact that he asked the same individual whom he had
given the stamp of Presidential power to proceed to make some 140,000
documents confidential so the public couldn't see them. Well, that,
too, was untested. That, too, was an original strategy. That, too, was
a situation of minimizing the conversation that experts could have of
what was in those records.
Of those three phases, I think the one that bothers me the most is
the second one--the use of the stamp of Presidential privilege on
100,000 documents. When Presidential privilege--otherwise known as
Executive privilege--was used in the past, a document was looked at and
it was determined, what constitutional test does this meet for special
treatment? One would think that since these were documents from the
Bush administration, the Trump administration couldn't make any of the
arguments that normally are made about compromising conversations in
the White House, but no explanation was given. This was just straight-
out censorship across the board.
I challenged that censorship, and the hearing that was supposed to
take

[[Page S6649]]

place unfortunately won't take place because of this rush to complete
the confirmation before the Senate can get ahold of those documents,
before that hearing can occur.
Why the rush to cooperate with the White House to prevent this body
from seeing those 100,000 pages that were censored by the White House?
What is the President hiding? Is it Brett Kavanaugh's involvement in
the policy of torture? Is it Brett Kavanaugh's involvement in holding
the documents stolen from Senate Democrats, because we know he received
them? Is it his involvement in other nominations where he said he
wasn't very involved? What is in those 100,000 documents that the White
House was desperate that this body not review? That is certainly
troubling. No nomination should go forward without a review by this
body of a nominee's records, certainly not for a lifetime appointment
and certainly not for the Supreme Court.
Then there is concern over the temperament of the individual. Out of
the hundreds of millions of Americans across this land, certainly there
are at least nine who have the temperament to serve. No need to turn to
someone who is belligerent and condescending. No need to turn to
someone who is angry and unstable. But what did we see? That is exactly
what we saw when we heard him testify before the Senate Judiciary
Committee.
He said things like: ``Some of you were lying in wait and had it
ready,'' although he said it in an angrier tone than that.
He said: ``This confirmation has become a national disgrace.'' Well,
I don't actually argue with that because it is a disgrace because of
the compromises of fairness that have occurred in this process toward
the women who came forward.
When he was asked by Senator Klobuchar if he has ever been blackout
drunk, he responded: ``I don't know. Have you?'' Well, interesting
response. Did he respond ``I don't know'' because he can't remember
because he blacked out? Was that his point?
Then we saw the partisan rhetoric: a frenzy on the left to come up
with something, anything, to block my confirmation. Angry and partisan,
all in one moment.
Then he went on to say much more about things being calculated and
orchestrated, about things being a political hit, fueled with pent-up
anger about President Trump. He talked about fear unfairly stoked. He
talked about revenge on behalf of the Clintons.
He threatened the Senate. He said: ``As we all know, what goes around
comes around.''
This man with these quotes is qualified to serve on the special body
known as the Supreme Court of the United States? I don't think so.
He talked about the fact that he didn't drink too much and he didn't
become belligerent. Yet we saw a lot of belligerence when he came
before the body. This is called not having judicial temperament. That
performance of intemperate behavior led to 2,400 law professors noting
that it was improper, inappropriate, simply wrong, that this man should
serve. They wrote a letter October 3rd: ``The Senate should not confirm
Kavanaugh.'' The letter was presented to us the following day. They
said this:

Judicial temperament is one of the most important qualities
of a judge. As the Congressional Research Service explains, a
judge requires ``a personality that is evenhanded, unbiased,
impartial, courteous, yet firm, and dedicated to a process,
not a result.''

The concern for judicial temperament dates back to our founding. In
Federalist 78, titled ``Judges as Guardians of the Constitution,''
Alexander Hamilton expressed the need for the integrity and moderation
of the judiciary.
The letter continues:

We are law professors who teach, research, and write about
the judicial institutions of this country. Many of us appear
in State and Federal court and our work means that we will
continue to do so, including before the United States Supreme
Court. We regret that we feel compelled to write to you, our
Senators, to provide our views that at the Senate hearings on
September 27, Judge Brett Kavanaugh displayed a lack of
judicial temperament that would be disqualifying for any
court, and certainly for elevation to the highest court of
this land.

They continued based on their background--2,400 law professors from
across the country--saying:

The question at issue was, of course, painful for anyone.
But Judge Kavanaugh exhibited a lack of commitment to
judicious inquiry. Instead of being open to the necessary
search for accuracy, Judge Kavanaugh was repeatedly
aggressive with questioners. Even in his prepared remarks,
Judge Kavanaugh described the hearing as partisan, referring
to it as ``a calculated and orchestrated political hit''
rather than acknowledging the need for the Senate, faced with
new information, to try to understand what had transpired.
Instead of trying to sort out with reason and care the
allegations that were raised to him, Judge Kavanaugh
responded in an intemperate, inflammatory, and partial
manner, and he interrupted and at times was discourteous to
Senators.
As you know, under two statutes governing bias and recusal,
judges must step aside if they are at risk of being perceived
as or of being unfair. As Congress has previously put it, a
judge or justice ``shall disqualify himself in any proceeding
in which his impartiality might reasonably be questioned.''
These statutes are part of a myriad of legal commitments to
the impartiality of the judiciary, which is a cornerstone of
the courts.
We have differing views about the other qualifications of
Judge Kavanaugh, but we are united as professors of law and
scholars of judicial institutions in believing that he did
not display the impartiality and judicial temperament
requisite to sit on the highest court of the land.

Signed, with their respective institutional affiliations, 2,400 law
professors, saying that this man is not suited to serve.
Another concern not mentioned in that letter was his fidelity to the
truth--misrepresentations, inaccuracies, and straight-out whoppers.
Some of our colleagues, like the senior Senator from South Carolina,
said: I have argued to you that when you found that a judge was a
perjurer, you couldn't in good conscience send him back into the
courtroom because everybody who came in that courtroom thereafter would
have a real serious doubt--a real serious doubt over whether the truth
was being told.
Brett Kavanaugh said that all witnesses to his alleged assault of Dr.
Ford refuted her claim or said it didn't happen. What is the truth?
Only one person said it didn't happen: Brett Kavanaugh. All of those
other folks he said refuted it--nobody refuted it. They said they
couldn't remember, but they didn't refute it. And one said that while
she couldn't remember, she believed Dr. Ford. So Brett Kavanaugh, in
the most generous capacity, simply doesn't have the ability to keep the
facts straight on a pretty straightforward thing--big difference
between refuting and not remembering--or he deliberately misrepresented
the facts, in which case he lied.
Brett Kavanaugh said he first heard of the Ramirez allegations in the
period since The New Yorker published the story, but we have had
multiple reports that Brett Kavanaugh and his team were working to
discredit Ramirez before The New Yorker story. Why did he say that he
learned about it after, when he was working to discredit it before? Did
he think this was clever, that he could kind of say: Well, I heard
about the full story in The New Yorker after The New Yorker article was
published. Was that what he was trying to imply--like maybe I can slip
by on that one--because he didn't want people to know that he knew
about it early and had worked to discredit her? Another whopper from
Brett Kavanaugh.
Brett Kavanaugh said he did not travel in the same social circles as
Dr. Ford, who went to Holton-Arms, but what was the truth? His
classmates said they routinely socialized with the Holton-Arms girls.
So much for that statement.
Brett Kavanaugh said he categorically did not receive documents
stolen from Democratic Senators and their staffs by Manny Miranda in
the early 2000s, but in one of those documents that didn't get
censored, that slipped its way through to the Senate, what did we find
out? It shows that he clearly received the stolen documents--another
lie from Brett Kavanaugh.
Brett Kavanaugh said that Judge Pickering's nomination was not one he
primarily handled. Well, let's just say that this is less than the full
truth. Maybe if you emphasize the word ``primarily,'' you find some
shred of accuracy, but it is certainly not a full and appropriate
presentation because it turns out that he was involved in a number of
critical aspects of the Pickering nomination.
Brett Kavanaugh said he did not see or hear anything about President
Bush's warrantless wiretapping program before it was publicly reported,

[[Page S6650]]

but in some of those other documents that slipped through, we find out
that he did know about them, and he emailed John Yoo about the
warrantless wiretapping long before the program became public.
Brett Kavanaugh said the Bush administration did not consider
ideology when selecting or vetting judges, but the truth is that the
documents show that they did consider ideology.
Why did this man, Brett Kavanaugh, feel the need to misrepresent the
truth time after time after time?
He implied that when it came to drinking, he didn't drink excessively
and he did not get aggressive. Yet we have person after person after
person saying that is exactly what happened.
He said the phrase ``Renate Alumnus'' in his yearbook was ``clumsily
intended to show affection.'' Let me repeat that: ``clumsily intended
to show affection.'' And he continued: ``and that she was one of us.''
Isn't it nice that he and his colleagues got together to pick out this
one young lady and show in their yearbooks that they had affection for
her, when everyone else involved said that is not what it was all about
at all? It was about this group of men bragging about sexual conquests.
It may not have actually occurred, but they were laughing over the
prospect of disgracing this individual. What kind of a warped character
goes out of his way to either brag about sexual conquests or to imply--
imply--a character that she did not have, to tear her down? But that is
Brett Kavanaugh.
He went on to tell some real whoppers--that folks in his circle say
the term ``ralphing'' refers to throwing up when drinking. He said: No,
it refers to a sensitive stomach. They are all things that he had
written.
``Boofing,'' what was that all about? He said that has to do with
flatulence, but everyone around him says: No, that was a crude sexual
activity that he was describing. That is what that word means. I will
not give the details of it.
He said ``devil's triangle'' is a drinking game, when everyone else
says: No, it wasn't a drinking game; it has another sexual connotation.
So he couldn't bring himself to be honest and say: I don't feel
comfortable giving the definition of those in a public hearing because
I am such a nice, sweet guy. But instead, he lied. Lying came so easy--
lie after lie after lie. As my colleague from South Carolina said: When
a person lies once, you don't trust them after that. How would anyone,
after breaking the truth, be believed in the future?
So we have the fact that his character is one of hurting and
attacking others, of lying even to the U.S. Senate. Some 2,400 law
professors note that his temperament, his animosity, and his
partisanship make him unqualified to serve on the Court.
So what is this all about? Why are my colleagues across the aisle so
intent on getting him confirmed? It has to do with his judicial
philosophy and taking no risk that this seat is not filled with this
judicial philosophy--this philosophy for the powerful over the people.
There have been some interesting aspects of this philosophy. One is
that he believes that the President is above and beyond the law and
should not or cannot be indicted or investigated while he is in office.
The Court may well have to make some rulings on how President Trump
conducts himself. President Trump might just fire the special
prosecutor. Is that within his power? The Court may have to decide.
The President may decide to pardon himself--something never done in
U.S. history--given all the investigations into egregious conduct. Why
did the President pick this individual, who has the most expansive view
of Presidential power, to serve on the Court? Maybe he is trying to
write himself a ``get out of jail free'' card. But if you can't find in
the Constitution that the President is above and beyond the law--and I
dare you to try; I dare anyone in this Chamber to find that in the
Constitution, because it is not there--why are we putting a man on the
Court who thinks it is, who is so comfortable twisting and torturing
the words on the page to reach a predesired conclusion?
Yes, he was handpicked by the Federalist Society after Trump promised
to appoint anti-Roe v. Wade judges who would strip away the
constitutional right to a full range of reproductive services. It
bothers me a lot--the idea of a judge who believes the government
should be in the exam room, between a woman and her doctor. The
government does not belong in an exam room, between a woman and her
doctor on difficult medical life issues.
But in every decision--or virtually every decision--Kavanaugh finds a
way to twist the circumstances in order to find for the powerful over
the people. That is what this rush to jam this person onto the Court
is. Does he believe the Court should take on gerrymandering, which is a
huge blight on equal representation of the people? There is no sign
that he does. We currently have a Court where the majority has not
wanted to take on those issues, despite the fact they are the ones who
are supposed to maintain the integrity of the Constitution.
Do we have any sign that he is upset or concerned about the tearing
down of the Voting Rights Act, which this Chamber passed and the House
passed and was law for decades but was torn down by the court? Rather
than letting this Chamber or the House together decide to adjust that
law, they decided to tear it down, saying: We don't have to worry about
this anymore.
Is there any sign that Judge Kavanaugh cares about the desecration of
the opportunity of citizens to vote in this country? No. An offense
against the Constitution, yes. His concern, none.
What about the dark money that is the consequence of a huge
concentration of wealth and influence--a huge concentration of
influence because the Supreme Court opened the door with the case
Citizens United? I found it kind of bizarrely humorous to hear
colleagues across the aisle complaining about dark money, because they
have been absolutely arguing that dark money should be permitted. When
we had the idea of not having dark money and shining a light on it--it
was called the DISCLOSE Act--every single Republican in this Chamber
voted against it. Every single one voted against sunlight. Why is that?
The Koch brothers essentially are the puppet masters of this Chamber.
They invested hundreds of millions of dollars in dark money, thanks to
Citizens United, in making sure that they had control of this Chamber.
Did we hear Judge Kavanaugh have any interest in cleaning up this mess?
Thomas Jefferson was speaking to the core architecture of our
Constitution, and he said that the mother principle--he referred to it
as the ``mother principle''--was that there would be an equal voice
among the citizens. Now, we know it was not the case that everyone had
an equal voice. Communities of color did not have an equal voice and
women did not have an equal voice, but what Jefferson was speaking to
was the distribution of power across the electorate. He said only then
will you have laws that reflect the will of the people.
But Citizens United is the opposite of that. It concentrates power.
If you have an individual like the Koch brothers who can put $100
million into a campaign and you have an ordinary person who can put
$100 into a campaign, then you are granting the Koch brothers 1 million
times the influence. It is the exact opposite of Jefferson's ``equal
voice'' principle.
Does Kavanaugh have the slightest understanding that the construction
of the Constitution was to avoid the powerful--running the government
by and for the powerful? The Constitution was a response to that very
problem in Europe. There is no sign of that, no interest in that--in
fact, quite the opposite.
He has bragged about being the most pure on the First Amendment. What
does that mean? It means that he loves the weaponization of the First
Amendment, twisted as an instrument to give the powerful victories over
the people time and again--decisions against the environment, decisions
against workers, decisions against consumers, decisions against
reproductive rights. That is the rush to put this man, unqualified in
every possible way, to serve on the Supreme Court--not having the
temperament, not having the integrity. That is the rush--to secure and
ensure that Jefferson's concept of equal voice is destroyed.
The most troubling is his conduct toward women. The fact that he
collaborated with other boys to damage the

[[Page S6651]]

integrity of a young woman was troubling. Troubling beyond troubling is
the story of his assault on Dr. Ford, but you might say: Wait. We don't
have any corroborating information about that.
But Dr. Ford asked for her corroborating witnesses to come before the
Senate Judiciary Committee, and how many of those were allowed to come
before the committee? None. None. Zero. The committee was determined to
make it just ``he said and she said,'' without any other information.
That is treating an individual unfairly--absolutely unfairly--to cherry
pick information and only to allow it to support one side of the
argument and to deny her the ability to bring her corroborating people
before the Judiciary Committee. Even in 1991, that was not done with
Anita Hill. This body treated Dr. Ford worse.
Then the sham of the reopened FBI investigation, which was only
opened because one courageous colleague from Arizona said: I am not
going forward unless we really examine these situations that involved
his assault on women. But the decision on how to conduct that FBI
investigation wasn't up to this Chamber. It was up to the President,
and the President does a scoping document and tells the FBI whom to
talk to. Apparently, he consulted with the leadership, it is reported--
the Republican leadership of this Chamber--on whom to let the FBI
consult with, and the result was not to consult or talk to or interview
a single one of those eight people that Dr. Ford asked to be
interviewed.
It would take some time, I guess, to know exactly who said what to
whom. It was the President's decision. So the responsibility rests
there. But in the interest of fairness, was there not one Member of
this body in that conversation who could speak up and say: We want the
facts not a whitewash. We want the facts.
Apparently, no one did. No one insisted on that. They said: No, we
will go forward, even if we hide all of the facts.
Then, there was Debbie Ramirez, who shared her story of being
assaulted, her story from the college dorm. In that case, she said
there were 20 people that the FBI should talk to. Well, she wasn't
invited to appear by the Judiciary Committee at all, and none of her 20
individuals whom she suggested should be talked to were invited. So she
got no hearing--complete exclusion. Yet many Members of this Chamber
attacked her. Do you think that is fair, attacking a person but not
letting her come before this Chamber to give her story? Do you think
that is fair? It is not fair.
Then we have the FBI receive instructions from the White House, after
consultation with the Republican leadership, and the result is they
didn't talk to one of her corroborating witnesses--not one. Why, in
this day and age, where we have been in the middle of a ``me too''
conversation, can individuals in this Chamber on the right side of the
aisle take such joy in being so unfair to a woman coming forward to
share a story? It is even worse because each one knew, if they read the
newspapers, that there was a lot of corroborating information.
Kenneth Appold was in the same suite in the dorm. He lived in the
same suite--two bedrooms, sharing a common space--and he heard the
story. He independently recalled many of the same details that Ramirez
shared, including that a male student had encouraged Kavanaugh as he
exposed himself. The classmate recalled that the party took place in a
common room on the first floor.
I have known this all along, he said. It has been on my mind all
these years when his name came up. It was a big deal.
How come his voice was not allowed to come before the Senate? Why did
the FBI not talk to him and put it into the report? I will tell you
why. It was so Senators could go down and review the report and say,
oh, there is no new information.

Of course, there is no new information. It is because the President's
team reportedly asked the Republicans' leadership what they wanted
done, and apparently it didn't want any of the people who had
corroborating information to be talked to or reported on. That is a
betrayal of justice. That is a complete corruption of justice.
Mr. Appold is a professor now at Princeton Theological Seminary. He
is deeply respected.
He said: ``It had been on my mind all of these years when his name,''
referring to Kavanaugh, ``came up. It was a big deal.'' The story
stayed with him, he said, ``because it was disturbing and seemed
outside the bounds of acceptable behavior even during heavy drinking at
parties on campus.'' He said he had been shocked but not necessarily
surprised because the social group to which Kavanaugh belonged often
drank to excess. He recalled that Brett Kavanaugh was relatively shy
until he drank, at which point he could become aggressive and even
belligerent.
Now, this individual, Kenneth, may be quick to judge, and one may
say, well, he just invented this memory, except here is the problem--he
shared it with his roommate from his first year in graduate school. He
told what had happened that year, so he has a lot of credibility. He is
a professor at a theological seminary. He lived in the same suite. He
heard the story about it shortly after it happened. It disturbed him so
much that he shared it with his roommate from his first year in
graduate school. That is a pretty persuasive substantiation of Debbie
Ramirez's story.
There was another classmate, Richard Oh, an emergency room doctor in
California. Soon after the party, he recalled overhearing a female
student tearfully recount to another student an incident at the party
involving a gag with--well, you know the story--followed by a male
student exposing himself. Was Richard Oh invited to come before the
Senate and tell his story? No, he was not--another transgression of
justice. Did the FBI talk to him? No, because it had instructions not
to talk to these individuals who had corroborating information.
This is situation in which, when a woman comes forward to share her
story, she is treated with disdain by this institution. That is why
these women didn't want to come forward. They thought they were
mistreated. Unfortunately, it turned out to be right, and everyone
supporting and voting for Kavanaugh shares the shame of the
mistreatment of Dr. Ford and the mistreatment of Debbie Ramirez.
Across this land, it has caused women to relive the experiences they
have gone through, with many of them having written to our offices. I
encourage every Senator to read every one of the letters they are
getting before voting late this afternoon on the question of whether
Kavanaugh should serve on the Court. I read five letters earlier, but I
have received a lot of letters. I am going to read more of them now.
This individual writes:

Please do what you can to block the Kavanaugh vote to the
Supreme Court. I was also a victim of sexual assault when I
was in graduate school in the early 1970s. I never pursued
that due to fear of consequences and feeling that this was my
fault.

``This has to stop,'' she concludes the letter.
Do you think that she got any encouragement from the completely
unjust way this body treated these two women? No. It is exactly the
classic setup and rigged response with which, so often, women have met
when they have had the courage to come forward with their stories.
Another woman wrote:

I cried all the way to work, listening to Dr. Christine.

She is referring to Christine Blasey Ford.

If you can do anything as my Senator, do everything you can
to change the course of our national Court decision. There
isn't much more I can say as a mom, as a professional, as a
sexual assault victim who has never come forward. Please.

I appreciate her writing to me, and I share her concern and the
belief that we should change the course we seem to be on at the moment
because there is nothing like confirming this man without fairly
examining the women who have been courageous enough to come forward. It
is more insulting to all of these women who have gone through the
experiences of being assaulted.
Another Oregonian wrote to me:

I am a survivor of sexual abuse. I was assaulted as a child
by someone my family trusted, then again by a stranger when I
was in college. In both instances, I remember the sinking
feeling I had afterward--the feeling that even if I spoke up,
I wouldn't be believed. I have long felt trapped inside my

[[Page S6652]]

own trauma, but over the past couple weeks, I have drawn such
strength from the sisterhood of survivors who have shown up,
protested, and shouted out their own survivor stories. I have
drawn strength from Dr. Christine Blasey Ford's testimony. I
know that because she stepped forward, other survivors will
feel brave enough to speak up too. There is power and comfort
when women come together and speak our truth before the
world.

I say to Dr. Christine Blasey Ford, I am sorry you were treated in
this horrific manner by the Judiciary Committee of the U.S. Senate. I
am sorry you were treated so unfairly that not a single one of your
corroborating witnesses was pulled before the committee. I feel
terrible that those at the FBI did not talk to any of the people you
asked them to talk to. It was a rigged system. You were set up. You
were betrayed by the leadership of this body, but your courageous
action in coming forth was not without results.
This woman, like thousands of others, is looking to you and saying
thank you--thank you for the courage you had to share. Even though you
were afraid that you would be treated unfairly, you came forward
anyway, and that gives others courage to share their stories.
Unfortunately, your fears, Dr. Ford, were justified. May it never be
again the case. The only right thing now is for us not to send Brett
Kavanaugh to the Court.

There was an article that appeared in an Oregon newspaper, and I am
going to read the story but, like the newspaper, not share her name.
The newspaper story starts out this way:

The event happened 75 years ago when ``Dorothy''--[not her
real name]--watched the testimonies of Christine Blasey Ford
and Brett Kavanaugh on television, on Thursday, during
Kavanaugh's Supreme Court confirmation hearings. The memories
came flooding back, and for the first time, she felt she must
tell her story--a story she never told her mother, a story
she didn't tell her husband either.

Dorothy's story is similar to the story Blasey told, on Thursday, in
testimony that was part of the confirmation hearings for Supreme Court
Justice Nominee Kavanaugh. Blasey accused Kavanaugh of attempting to
rape her when they were both at a house party with a group of high
school students. Kavanaugh denied the accusations, which are now the
subject of an FBI investigation.

Dorothy, now 91, was a student at Reedsport High School in
the 1940s. One day, she was at a friend's house where several
kids her age were gathered. She said she was carried into a
bedroom by a popular football player, and before she knew
what was happening, she found herself pinned to a bed,
underneath the boy, who was struggling to get her pants off.
He was both a ``big man'' on campus and ``just big.'' She was
85 pounds.

In some ways, Dorothy's story is different from Blasey's in that she
was carried and not pushed into the room. There was no one in the room
except her and her attacker. Dorothy said she was able to push the boy
enough that he hit his head on the bed's headboard, and with his weight
off of her, she was able to yell for help, and her friend and her
friend's brother rushed in and rescued her.
Dorothy doesn't want The News-Review to use her real name, so she is
being referred to by a name that was given to many girls in the year
she was born. She still has difficulty dealing with what happened to
her in high school. For most of her life, she has refused to think
about it. She has had plenty else to think about. She has raised kids,
been widowed, remarried, widowed again, but it is still with her.
She said:

You try to bury all of that, and you do for a long time.
Then something like this news comes up, and it brings it all
back.

Dorothy started off talking about sexual harassment. It was later
when she felt able to call what had happened to her by a more legally
accurate name--attempted rape. Dorothy said she was naive when she was
16:

I was pretty shy and naive and unsure of myself, I guess. I
don't know if feeling ``inferior'' is the right word. I made
good grades, and I worked in the school office, but I was a
country kid.

She couldn't talk to her mother about sex.

If I tried to ask her anything about sex, she said, ``That
is dirty. We don't talk about that.'' She had a general idea,
enough to understand what her attacker was after. She didn't
know if he and other boys were drinking, but she was not. The
kids had been dancing before it happened. It never occurred
to her to report the incident. That just wasn't done in those
days, and she was ashamed--embarrassed--as if the whole
incident were her fault.
The story got around at school, though, and the other kids
were not sympathetic. You look, and people are kind of
giggling as you walk by. They had heard about it.

Now she wonders if the same boy went after other girls.

It is part of life, and it happens a lot more than people
realize. It probably happened to other girls in the same
school, she said. Many years after the event, Dorothy said
she saw her attacker. He was in a wheelchair, and she
couldn't help thinking, ``Great. He got what he deserved.''

Even though 75 years have passed, she has never forgotten what he
did.

I can still shut my eyes and see that guy packing me over
his shoulder and throwing me on the bed and jumping on top of
me.

Watching Thursday's hearings made Dorothy furious. She believed
Blasey, and she was horrified by the Senators who defended Kavanaugh.

They are so unfeeling, you know? I would hate to be their
wives. If they just sit there and take this guy's word for
it, I feel sorry for the wives of these guys who are so macho
that they can't see a woman's point of view.

The hearing motivated her to come forward.

I just felt now is the time to tell my story, and maybe
other women will come forward, and maybe they will do
something more about the way that women are disbelieved.

She said it was a relief to finally share her secret. ``I am about to
get weepy,'' she said.
Do you think this woman, who is now in her nineties and went to
Reedsport High School, takes any good feeling away from the Senate in
the way the Senate treated Dr. Ford with regard to the fact that it did
not allow anyone supporting her story to appear or with regard to the
fact that leadership was consulted by the White House and that the
result was a scoping document that did not allow the FBI to talk to the
people who had supporting information?
Do you think she takes any good feelings away from the way this
Senate treated Debbie Ramirez in its attacking her and disqualifying
her without even letting her come and tell her story and not talking to
the 20 people she suggested had corroborative information?
Do you think she takes anything good away from the horrific way these
women were treated and the unfair way they were treated? I do not think
so.
You must look at the way the Senate behaved and say that is supposed
to be a distinguished body, that it is supposed to being an esteemed
body. We should expect the best from the U.S. Senate and we got the
worst.
Another woman wrote:

You must stop the confirmation of Kavanaugh, especially
after his angry, abusive testimony today that was full of
lies. I am a sexual assault survivor, and I am absolutely
full of despair this evening.

I am not the only one getting these letters. So, to my colleagues, I
ask: Are you doing anything to address the anger about the way Dr. Ford
was treated? Are you insisting that she get fair treatment before you
vote to send Kavanaugh to the Supreme Court of the United States? Are
you insisting those who can corroborate Debbie Ramirez's story,
including a professor at the Princeton Theological Seminary, have the
chance to tell their stories before you send Kavanaugh to the Supreme
Court? Are you?
Another individual wrote:

Please, please, please vote no to elect Brett Kavanaugh to
the Supreme Court. As a victim of domestic violence, I am
full of fear for everyone who would be affected by the
decisions Kavanaugh would have the power to make.

This letter starts out:

Senator, I want to thank you for expressing your concerns
regarding the Kavanaugh issues. I am a survivor of rape by my
best friend's older brother at the age of 10. I also
survived many years of abuse by my ex-husband. While
watching the coverage of the Kavanaugh news, I have heard
Senators make very hurtful comments about the women who
have come forward. I was proud of my Senator for having
the courage to publicly announce that the way this has
been managed by the Trump administration is wrong.
I totally relate to what Dr. Ford describes as being held
down and not being able to breathe. The only word that
adequately describes this type of treatment is torture. I do
not know where my former best friend's brother is; however,
my ex-husband walks around with a religious cross around his
neck. He is a pillar of his church, has the admiration of our
daughter. I never told my

[[Page S6653]]

children, while I am left with years of nightmares and fear.
The Kavanaugh allegations in the news have triggered
memories I have tried to bury for decades.

She says:

Though, your comments have renewed my faith that other than
my older brother, there exists good men who want to support
women who live with the torment of sexual abuse.

I would love it if this letter said: I was afraid that the all-male
majority of the Judiciary Committee would treat Dr. Ford unfairly. I
was afraid but relieved when they heard her out. I was relieved when
they insisted that those who could back up her story were allowed to
testify. I was relieved and pleased they took her seriously enough that
they insisted the FBI--they told the President the FBI has to talk to
those folks for us to have any credibility. I would love for this
letter to say that, but it doesn't say any of those things because this
body, this leadership, let her down and let every woman across America
who has been a victim of sexual violence down.
Another woman wrote and said:

Today's hearing was difficult yet important to watch. As a
victim of sexual assault myself, I applied your support
hearing Dr. Ford's accounts and believing in doing what is
right and just.

Wouldn't it be better if this letter could say: I applaud the Senate,
the Senate leadership, and the President of the United States for
believing in doing what is right and just. We didn't get letters like
that, did we.
Another individual writes:

Today was an extremely difficult day watching the Kavanaugh
hearings. I was so amazed by the bravery Dr. Ford showed
throughout her testimony. Her experience was raw and
credible. As a young victim of sexual assault, I feel
emboldened because of Dr. Ford's testimony. Women need to be
heard and believed. We have to hold the Supreme Court to the
highest standards. Brett Kavanaugh is clearly not a candidate
for the Supreme Court.

Isn't that right, that we should ensure that we have the highest
standards for those who serve on the Supreme Court?
All those district judges across the land writing their decisions,
they get appealed to the circuit courts, and all those circuit court
judges writing their opinions, they get appealed to the Supreme Court,
to nine individuals. Isn't it important that we proceed to ensure that
we ``hold the Supreme Court to the highest standards''? We will not do
that if we confirm Brett Kavanaugh to the Court.
We will be setting an abysmally low standard for integrity for all of
the falsehoods he has told and an incredibly low standard for behavior.
We saw the behavior and the partisanship. We didn't see judicial
temperament and impartiality.
He violates basically every standard we set for someone to serve on
the Supreme Court. Yet we are having a vote later today with an
indication that he will be approved.
Here is another letter:

I am a sexual assault survivor. I watched today. The sex
crimes prosecutor looks like she had nailed Kavanaugh by his
own calendar. Dr. Ford testified that it was early evening
and casual. It appears the assault happened at the home that
Kavanaugh and his friends worked out. This is when one of the
majority Judiciary members took over and became angry
partisans.

That is all she writes, but I think what bothered a lot of people was
that the majority chose to bring in a prosecutor--a prosecutor--to
question Dr. Ford, as if Dr. Ford had committed a crime.
She didn't commit a crime, my friends. She is a brave woman who came
forward to share her story, hoping she would be taken seriously and
treated fairly, afraid she wouldn't, and it turned out her fears were
justified. They hired a prosecutor to treat her like a criminal. Wow.
That is insult to injury.
This letter is longer. It is the 16th story I am reading that I
received from constituents back home.

Watching Dr. Ford's treatment in the Senate today, I am
having a hard time getting my own work done. Dr. Ford's
assault experience parallels my own in ways I have not
thought about in years. However, unlike Judge Kavanaugh, my
assailant was able to complete the assaults he set out to do
because we were not inebriated at the time he violated me. He
merely used his size to overpower me, outweighing me by 150
pounds.
Like Brett Kavanaugh, my assailant attended an all-boy's
Catholic school, attended a prestigious university, went on
to become an attorney. I have considered, because of the
types of clients he represents, bringing the multiple
assaults he perpetrated over the course of 2 weeks, while I
stayed with his family across the country from my own, to the
attention of the State bar where he practices or journalists
in the State where he defended Catholic priests accused of
abusing children.
Seeing now what Dr. Ford is being put through, knowing she
was driven from her home and threatened, is now being
assaulted by her colleagues, gives me pause.
My assailant isn't up for any prestigious promotions. He is
not on the short list for a Federal judicial position or
running for any public office. It has been 18 years, and the
statute of limitations in the State where this took place may
or may not have run out, depending on how the acts are
defined. If my assailant decides to follow through with his
goal to become a politician, my calculus may change. For now,
I need you to do what you can to shut this nomination down,
to show the world that you not only believe Dr. Ford but you
honor--honor--her testimony.
Your colleagues, your Republican colleagues, clearly
believe her; they just don't think it matters. Please, as a
survivor and as a constituent, I am begging you, make her
testimony matter.

Are we going to make her testimony matter? We are not going to make
it better if we send Kavanaugh to a seat on the Supreme Court.
Her desire, her interest, her possibility of coming forward is cut
short by the way she saw this Senate treat Dr. Ford. That is a very sad
commentary on the injustice perpetrated by this body.
This is letter No. 17. I have more than 50 letters here. As you can
start to hear, the themes of women being assaulted are very similar;
women hearing in Dr. Ford's story their own experience, and they are
asking the Senate to treat the women who have come forward with
fairness and justice and are being deeply disturbed that they have not
been treated with fairness or justice.
There is still time. There is still time until we vote and send
Kavanaugh forward, if we vote no, as these women asked because an
individual with this record does not belong on the Court. Then we will
admire the courage of these individuals to come forward.

The next letter:

As a survivor of assault, it's important to me that the
nominee for one of the highest offices have an impeccable
record, which Kavanaugh has demonstrated he does not have,
both through his reactionary hearing and the accusations
against him from survivors. I implore you to be a voice of
reason in the chaos.
My first assault happened in 2011. I am so ashamed that the
only way my sister found out was because she found an STD
test I had received from Planned Parenthood and asked me
about it. I was 24. I had nightmares for months. It changed
everything.
My second assault happened in 2015. I was drunk and in an
unfamiliar part of town. An acquaintance offered to give me a
ride when I was leaving a bar and my phone died.

She goes on to describe the attack. She says:

I say this not for shock value, but to emphasize how
painful watching this hearing was and how unsurprised I will
be if Kavanaugh is confirmed.

Unsurprised because she doesn't expect men to treat women fairly who
have been assaulted and have come forward. And everything that has
happened in this Chamber confirms that.
The next letter notes:

As a survivor of sexual assault, this issue is of the
utmost importance. I rarely speak of these events and have
tears streaming down my face just writing this. I was unable
to report my assault for various reasons, including explicit
death threats, fear of exposure by the media, and threats by
several powerful men who had the ability to end my career
before it had even really begun. This situation hits so close
to home that it has been physically painful--physically
painful--for me to watch much of the coverage. I have been
unable to obtain justice for myself, and that is soul-
crushing. But what would be a greater travesty is to allow a
serial predator a lifetime appointment affecting the lives of
every single woman in America. Are we going to be part of a
greater travesty?

Letter No. 19:

As a constituent and a victim, I am writing to you to make
sure that you vote against Brett Kavanaugh's confirmation.
During his hearings, Kavanaugh misled the Judiciary Committee
under oath. He refused to say whether a sitting President
must obey a subpoena and refused to answer whether President
Trump could pardon himself or bribe someone with a pardon.
And now, Kavanaugh has been accused of sexual assault by
multiple women.
Kavanaugh's answers during his confirmation hearings add to
the evidence that Trump nominated him not to protect the

[[Page S6654]]

American people, not to protect the Constitution, but to
protect himself. It was only a few weeks ago that Trump's
former lawyer incriminated him in two felonies. It's becoming
inevitable that a Trump case will reach the Supreme Court,
either over his role in crimes to win the White House or a
subpoena to answer questions from the special counsel.
We already know that Kavanaugh believes sitting presidents
should not be under Federal prosecution or even
investigation. Now, under oath, Kavanaugh isn't even
pretending to be an impartial justice. That is exactly why
Trump nominated Kavanaugh--to be his get-out-of-jail-free
card.

Letter No. 20 begins:

As a rape victim myself, I am livid that this man is even
being considered for a high position. Brett Kavanaugh's views
are extreme. His belligerent behavior during the hearing
shows that he should not sit on the highest court in the
country. I urge you to reject that radical choice of a
justice who would put our basic rights at risk. Use your
constitutional authority of advice and consent to ensure that
the President cannot place unfit extremists in positions of
power that can affect us for decades.
Serving for life on the highest court, justices have the
solemn responsibility to be fair, to be evenhanded, to uphold
the sanctity of our laws and our Constitution, and to keep
faith with the letter and the spirit of the Nation's core,
public health, environmental, civil rights, and labor laws.
His record rejects these principles. Please do all in your
power to stop Brett Kavanaugh's nomination.

Letter after letter reminds us that the Supreme Court is so
important. We should only send individuals to serve on that Bench who
are of unimpeachable character.
Letter No. 21:

I am deeply concerned about Brett Kavanaugh's nomination to
the Supreme Court after hearing Dr. Christine Blasey Ford's
story. There is no need to wait to publicly say that you
believe Dr. Ford. She has generously offered more than enough
information for us to fiercely support her.
I, too, am a victim of sexual assault. When I was 21, my
boss at the time raped me, leaving me with a lifelong
disease, and it never was reported. I had no support. I was
embarrassed and humiliated and wanted to just forget about
it. Looking back, I wish I would have tried to report him. I
was a single mother with a 2-year-old child and my 12-year-
old sister present when the assault occurred in the middle of
the night as they slept.
This happened to me in 1974. I am now a 66-year-old woman
who has had relationship problems her whole life and self-
esteem and anxiety and sexual dysfunction ever since.

A lifetime impact from sexual assault.
Each of these women wants us to take seriously the experiences that
were shared, and to take it seriously means we would look into it with
fairness and credibility, but we didn't. The Senate didn't.
Letter No. 22:

It would be beyond unethical to continue with Kavanaugh's
nomination in the wake of Dr. Blasey's story. I am counting
on you. Signed, a MeToo survivor.

Letter No. 23:

As a victim of sexual assault during my military service,
I, too, told next to no one. Why? I wasn't about to subject
myself to being treated the way these courageous women who
have spoken up are being treated. I am counting on you. Thank
you.

We hear this time and again. Women say they didn't speak up because
they thought they would be treated unfairly--unfairly--just the way the
Senate treated the women who came forward and shared their stories
about Brett Kavanaugh. Isn't that a sorry legacy for this body? Isn't
that a shameful result, that women say they didn't speak up because
they thought they would be treated unfairly, just like the Senate is
now unfairly treating Dr. Ford and Debbie Ramirez? Wouldn't it be a
beautiful thing to have done it differently, to have proceeded to say:
Your story matters, so we will talk to those you suggested have
corroborating information. We will report what information there is for
the consideration of the Senate. We do appreciate that you have shared
your experience, and we will look into it.
Wouldn't that have been a very different message to send, an example
to send for everyone across this country--for companies when an
employee reports an assault, for places of worship when a parishioner
reports an assault, for schools, universities, when a student reports
an assault?
Wouldn't it have been great to set an example--a high example of how
to treat an individual fairly? But we did the opposite. We showed
exactly the type of treatment that these women fear--a rigged, unfair,
unconcerned response. But there is time to remedy that by not voting to
confirm.
One of the reasons I am reading these letters is that many of the
women who wrote said they were writing to try to make a difference. My
team called and talked to a number of them, and they encouraged their
letters to be used. They want to be heard. They want to be honored with
our intention that we care about the experiences they have suffered,
that we take them seriously. They want us to think about what we have
done and take Dr. Ford and Debbie Ramirez seriously. That hasn't
happened, but there is still time by not confirming Brett Kavanaugh.
In this letter, the individual says:

How you vote on Brett Kavanaugh's nomination is one of the
most crucial votes you will cast. Please vote no.
Prior to hearing this round of hearings, I was concerned
about his ability to be truthful. Now, as a survivor, I am
fearful for the entire female population. I urge you to vote
no for all of those reasons.

Letter No. 25:

I believe Dr. Christine Blasey Ford. I do not believe a man
who could have stifled a frightened woman's screams while he
felt entitled to put his hands on her body without her
permission. I do not believe such a person is fit for one of
the highest courts in our country. She took a lie detector
test. He did not. She called for an FBI investigation. He did
not. She was calm and collected. He was not.
As a sexual assault survivor and your constituent, I
implore you to stand with women.

Letter No. 26:

Thank you for fighting. I was a victim of sexual assault at
age 12. I am now 71. I remember it vividly. It has affected
my whole life. If Kavanaugh is confirmed, we will put a
horrible man on our highest court.

Thank you for highlighting the serious deficiencies in the process of
President Trump's nominee, Brett Kavanaugh, to the Supreme Court.
Letter No. 27:

I am heartened by your efforts and like-minded Members of
Congress who have joined the 21st century, many whose eyes,
ears, hearts, and minds have witnessed the scourge of sexual
misconduct. I am a 58-year-old Native American, native
Oregonian. I grew up on a Catholic Indian mission with both
my parents and seven brothers and sisters. Later in life, I
recalled through discussions with my younger sister that my
older brothers had most likely sexually abused me when I was
a very young girl, less than 7 years old. I never reported it
because I didn't recall it until I was in my 40s. My parents
were alive and it would have destroyed them.
I am a sexual assault survivor who never told my best
friend in high school when one rape occurred.

She proceeds to share information about several other assaults when
she was serving in the Army, and she says that each time, she didn't
report it.

All of these incidents left me fearful, feeling vulnerable,
psychologically damaged, PTSD, emotional trauma, physical
trauma, and other problems too incalculable to quantify.

I think these topics are often not discussed. Women in our own lives
may have had experiences they have never shared with us, thinking that
they might be blamed, feeling that they are ashamed, considering that
they might not be believed, anticipating that they might expect that we
would feel they should somehow have prevented it or somehow invited it.
All of these conflicts--they sense they will not be treated with
respect and dignity as the victims they are. Let's treat them with
respect and dignity when they bring forward their stories.

Dear Senator Merkley: I have never taken the time to write
a Senator. With Trump as President, or having Trump as
President has caused depression and anxiety, but I have
gritted my teeth, battened down the hatches, and tried to
weather the storm. However, this saga with Kavanaugh has
mobilized me to speak out and protest a person of his moral
ineptitude.
I am a victim of sexual assault. I am sure you're hearing
the outpouring of messages like mine from hundreds of women.
I am so angry and so bitter about the current environment
that promotes racism, sexism. The things I have seen voted in
make me despair.

Rather than the Senate behave in a way that makes women despair, what
if we behaved in a way that inspired, set an example, had people say:
We didn't think you would rise to the challenge because so often we
have seen mistreatment when they bring forward their stories, but you
shocked us because you took it seriously and you treated these women
fairly. Wouldn't that be a beautiful story rather than the reality of
where we are right now?
Letter No. 29:

[[Page S6655]]

There are a number of viable options for this Supreme Court
seat--individuals not accused of any crimes--and regardless
of innocence or guilt, Kavanaugh has shown himself to be
unqualified to remain impartial as a judge. Furthermore, the
backlash of there being any question of guilt regarding rape
accusations is too great for him to successfully fulfill the
duties of that position and will cause a division between
voters that will likely never be healed.
Speaking as both a concerned voter and rape survivor, there
is no legitimate reason that we cannot find another candidate
for this job. If he is appointed despite these allegations,
it will be all but impossible for a rape survivor to ever
feel safe in the U.S. again. How could we if an accused
rapist is presiding as a member of the highest court in the
country?

She makes a point. There are many other people who can be considered
to be brought forward. Why this individual who demonstrated such
partisanship? Why this individual who bent and, yes, broke the truth
many times before the committee? Why this individual who wrote
offensive, mocking, accusing, disgracing things, attacking a woman in
his yearbook? Why this individual who chose to join a fraternity with a
reputation for assaulting women? Why this individual who chose to join
a secret society with a similar reputation? Why this individual about
whom credible women have come forward and shared their stories of
assault? And why this individual when we had the full opportunity to
have considered the corroborating information from 28 individuals who
they asked that we talk to and we didn't?
There is still time to reject this nomination and somehow restore the
tarnished reputation that is the product of the behavior of this body
during this nomination process.
Letter No. 30:

I am 66 years old, nearly 67. I can tell you exactly what
occurred when I was a victim of sexual assault and attempted
rape at age 16. It was burned into my memory and will forever
be a part of me.
I continue to be shaken to the core that anyone would
explain such behavior as normal, part of young men growing
up. It is unconscionable, unacceptable, and must no longer be
ignored.

Letter No. 31:

Dear Senator Merkley, I am reaching out to you as a
survivor of teenage rape. Like so many other survivors, I
have been following the events surrounding Judge Kavanaugh's
nomination with so much emotion that I cannot really begin to
express it. I do not believe that I need to ask you to say no
when it comes to a floor vote, but I want you to add my voice
to the many who are speaking out in the hope that the country
will listen.
Sexual assault affects millions of girls, boys, women, and
men. Too many of us live our lives in shame and silence,
disbelieved if not outright blamed.
Nearly 30 years have passed since a fellow student in my
small town high school took my innocence, to then proceed to
publicly shame me. People believed him, not me.
This has to stop. People need to realize that we may forget
some details, but we will never, never forget what happened.
And when we know the perpetrator, we will never forget his
name. He may grow old. His appearance may change. But his
name will remain etched in our brains forever.

She goes on to say:

Putting Kavanaugh on the court means telling all of us, the
countless millions, that we do not matter.

She closes by saying:

We matter. I matter.

Yes, you do. And when you say that you are adding your voice to the
many who are speaking out in the hope that the country will listen, I
commend you. I commend you for being brave enough to share your story
and to ask those in this Chamber to listen. But so far, they have not
listened because listening would mean treating with respect and dignity
the women coming forward. Listening would mean giving these women the
opportunity not just to present their case, their experience, but to
have those who can corroborate their information come before the
Judiciary Committee and share their stories. Listening would mean
insisting that the FBI actually talk to the corroborators rather than
not talk to the corroborators.

So you have not been listened to, I am sorry to report, but there is
still time for someone--for several people--to say: We have reflected
on this situation and realize how unfair and unjust we have been, how
much we add to the trauma of millions of women by not listening to the
women who have come forward, not taking them seriously, and rigging the
system, as they feared would happen.
This individual writes:

I have a voice even if those screams were stifled inside of
me so long ago. Today that voice says that Kavanaugh is not
fit to be a member of the Supreme Court.
Beyond the details of what transpired when he was a
teenager, his atrocious display during Thursday's hearing
should disqualify him outright. Integrity, level-headedness,
respect for the rule of law, and lack of partisan bias should
be fundamental requirements of any justice.
Kavanaugh did not display any of those traits. His
confirmation would stain the Senate and the judiciary for
years to come if not permanently.
I will conclude by saying that Dr. Ford's incredible
courage has helped me more than any therapy session. She
spoke. In speaking her truth to power, she spoke for all of
us.
I have shed so many tears watching and following these
proceedings, but finally feel like I can stand tall, that I
do not need to hide or live in shame. Her story is, in so
many ways, my story. The smart girl who loved math and
somehow made it through Stanford, completed a PhD, and
embarked in a career in research despite the trauma that
followed. . . .
All too often we hide behind a smile and mask of strength
so that people do not see that inside we cannot stop shaking.
Lawmakers would be well advised to not underestimate the
strength of our power when we raise our heads, shed our shame
and reclaim our voices. We may tremble, but we will speak. We
will be heard. We will NOT be dismissed.

Letter No. 32:

I am a victim of sexual abuse as a child, rape as a young
adult, and sexual harassment during my professional career. I
am also a successful practicing Child/Adolescent/Adult
psychiatrist, with 20+ years of experience.
Since Ms. Ford's testimony, on Friday I saw two female
walk-in patients, one of whom revealed to me her own sexual
assault, which occurred around the time of Ms. Ford's. She
confessed this is the first time she has told anyone about
this. The other woman I saw that day told a similar story.
From the press I understand crisis lines lit up all over our
nation, doubling their traffic in some cases.
I write because I am worried. The press reports that only
two of the three women making complaints against Mr.
Kavanaugh will be interviewed by the FBI. . . .
I am concerned that only two of the three alleged victims .
. . will be heard. To establish a pattern . . . the FBI must
include as many credible victims and witnesses as possible .
. . particularly given the timelines and deadlines they are
up against.
Statistics on rape in the United States are shockingly
high, higher even than many less developed countries.

She was concerned the FBI would not be able to speak and interview
those who could corroborate the experiences. It turned out far worse
than she could ever have imagined: 0 for 28--0 out of 28. Not, well, we
talked to 5 out of 28. Not we talked to 8 out of 28. The FBI was 0 out
of 28, not because the FBI would choose to do that but because they
could only talk to people whom they were allowed to talk to by the
President's scoping instructions. Those instructions were not to talk
to anyone who had credible supporting information. That is such a
violation of fairness, of due process, of justice.
There is that beautiful set of words carved into the front of the
Supreme Court: ``Equal justice under law.'' Wouldn't anyone who had the
right character to serve there have insisted--insisted--that these
women get fair treatment? But we didn't hear Judge Kavanaugh insisting.
He didn't even want an FBI investigation. He certainly didn't insist on
there being one that actually talked to the people who had information.
If your conscience is clean, if your life experience is clear, you
don't fear an investigation.
This letter goes on:

Furthermore, currently our Congress and Senate do not
reflect the 50.5% of Americans who are female. In fact, in
2017 US female representation by gender in Congress and the
Senate was far lower in the US than Germany, France, United
Kingdom, Sweden, Belgium, Netherlands and Spain.

She cites the source as the Inter-Parliamentary Union Parline
Database on National Parliaments.

As a result we rely on men to understand and act on this
predominantly female problem. American women depend on your
gallantry to ensure our government does right by us.
I plead with you to persuade our leaders to do the right
thing. Think of your mother, your wife, your daughter and the
women you love. Show us we are valued. As you make your phone
calls know American women watch with fear and hope. Don't let
us down.

Did we treat Dr. Ford and Debbie Ramirez in the way we would want our
mother, our wife, our daughter, or the women we love to be treated? No,
we

[[Page S6656]]

did not. She wrote asking for us to not let her down, and we have let
her down. There is only one appropriate thing to do, and that is not to
send this man who has bent and broken the truth many times before the
U.S. Senate to the Supreme Court, not to send this man who has credible
accusations of sexual assault that we were unwilling to investigate to
the Court.
The letter next notes:

As a sexual assault survivor it's essential to me that no
person who perpetuates such crimes ever sits in a position of
power ever again.

That kind of sums it up.
This is letter No. 34. She says:

I am a 52 year old proud Oregonian woman. . . . I too am a
victim and survivor of sexual abuse, and sadly a member of
the ``Me too'' club. Should you confirm Judge Kavanaugh, you
will be disrespecting every Me Too victim in America, young
or old.
Victims of abuse are across the spectrum, and no doubt
probably also in your families. Judge Kavanaugh is a nominee
for a lifetime appointment on the Supreme Court, an
interviewee. HE IS NOT A VICTIM. . . .

I did find it, by the way, so disturbing to hear colleagues treat the
women who come forward as the criminals and treat the nominee as the
victim. That is exactly the type of inversion that women fear. That is
exactly the type of reversal that has women deciding that they will
never get a fair hearing, and it is exactly what happened right here in
the U.S. Senate.
The letter continues:

Mrs. Ford was very brave in her testimony. . . .
All of you on the Judiciary Committee--WAKE UP! It is 2018,
not 1991 with Clarence Thomas, we now acknowledge and believe
victims that come forward to tell their stories, aka HER-
stories.
We will never forget your actions in this confirmation
process.

Well, the writer is saying it is 2018, not 1991, and yet we treated
Dr. Ford and Debbie Ramirez worse--worse than we treated Anita Hill in
1991.
Letter No. 35 is a letter from Oregon constituents writing in to
share their anger, their angst, their concern, their desire that women
coming forward be treated fairly, their desire that we treat them
seriously enough to actually talk to corroborating witnesses. Yet,
unfortunately, we did not.

In letter No. 35, the woman writes:

I was also a victim of sexual assault when I was in
graduate school. I never pursued that due to fear of
consequences and feeling that this was my fault. This has to
stop.

Letter No. 36:

Senator Merkley, I write to you today to urge you to vote
no on the Kavanaugh nomination. The time has come for women
to have a say in this society that men will listen to.
I am a victim of sexual abuse. My case happened when I was
22.
I never told anyone about my experience until I remarried
39 years ago.
I have an 8-year-old granddaughter, and I pray that she
will not ever have to battle someone to save herself.
I am now 75, and I remember the exact time and place this
incident occurred. One never forgets.

Letter No. 37:

I am myself a sexual assault survivor.
I listened to the testimony of Dr. Blasey Ford . . . last
Thursday. It was clear to me that her testimony was credible.
The likelihood that she may not accurately recall the
identity of her assailant, who was known to her before the
assault, is extremely improbable. Trust me. It is not the
sort of detail that an assault victim forgets.
The likelihood, on the other hand, that Brett Kavanaugh may
have failed to remember assaulting a . . . woman when he was
inebriated is quite probable. Not only does excessive alcohol
consumption dull the memory, but males who think so little of
women that they would thus assault them are likely to dismiss
the experience from memory as inconsequential.
I implore you to continue to work tirelessly to encourage
your colleagues to vote no on Kavanaugh's confirmation. . . .
His integrity and character are in serious question, and he
showed a total lack of judicial temperament. . . . I urge you
to stand up.

I know these letters didn't just go to individuals on this side of
the aisle. So I ask my colleagues, have you read the letters that you
have received that have asked you to take seriously the experiences
shared by Dr. Ford and by Debbie Ramirez? Have you taken them
seriously? Did you insist that their corroborating witnesses be
interviewed? The President's team says it consulted with the Senate's
leadership on how the FBI investigation should be done. We now know
that, in the way it was done, none of the 28 corroborating witnesses
were talked to--none. Did you take seriously the women in your home
States who wrote to you the way the women in my home State wrote to me?
Letter No. 38:

If the FBI's investigation was limited to Ford's and
Ramirez' allegations and excludes the third credible
allegation of Avenatti's client, it is wrong to cherry pick
credibility. I emphatically state that this third allegation
reflects my personal experience. I do not divulge this
lightly. It happened to me when I was 14. It was both legally
and morally wrong, and I never reported it.
This was in 1971 in Southern California. It was a recurrent
event before I came to learn that others were victimized in
the same manner--rendered unconscious in order to be engaged
without consent. It seems incredible that I would end up
attending other gatherings where individuals participating in
such activities would also be, but, in fact, this is my
experience as well.
One of my sisters--9 years younger--recounted that this
culture existed during her high school years in a party
environment in Northern California. In these environments,
there are certain coalitions of males who covertly foster
these environments, and the victim is typically isolated in
some back room or even some hotel room.
Please maintain my anonymity, but take seriously the
consideration of my deeply personal account. There are many
qualified jurists who possess the appropriate qualities to
sit on the highest Court of America.

That was letter 38. Yet there are so many more letters pouring into
my office, reading: Take our experiences seriously. Take seriously the
voices of Dr. Ford and Debbie Ramirez. This institution has failed
them.
I ask you, are you comfortable voting for this nomination when this
body did not hear from the individuals who had corroborating
information and you did not invite them to testify? Even that was done
in 1991. Are you comfortable voting to support this nomination when the
FBI investigation was limited by a scoping document that excluded
having interviews with any of the 28 people, put forward by the 2
victims, who had information to support them? Are you comfortable with
that? You shouldn't be. You shouldn't be comfortable voting for a
nominee who is under a shadow of allegations that we didn't even bother
to explore.
It confirms everything that women across this country fear--that when
they come forward and share their stories, they will not be taken
seriously, that the system will be rigged, and that they will be
blamed. Everything they saw in the way the Senate handled this
situation was shameful and embarrassing and beneath the dignity of this
body that should have given a stellar example of how to respect and
investigate, but it did not.
My colleague from New York has arrived to share her thoughts. I thank
her for her strong and fierce defense of women across this country who
have suffered so much and been silent so often in fear they will be
disrespected as the two women who came forward, Debbie Ramirez and Dr.
Ford, feared they would be disrespected. This body confirmed every fear
they had.
Let's not vote to put on the Supreme Court of the United States an
individual who bent and broke the truth many times before the
committee; an individual with a record--even, as we know, from his high
school and college years--of abusing women; an individual of arrogance
and anger; an individual with partisan sentiments; an individual who
thinks the President is beyond the law; an individual who finds, time
after time, for the powerful over the people. That is not the person
who should be confirmed to serve on the Supreme Court of the United
States of America.
I thank the Presiding Officer.
The PRESIDING OFFICER (Mrs. Hyde-Smith). The Senator from New York.
Mrs. GILLIBRAND. Madam President, today and these past several weeks
have been deeply painful for many in this country. Today it is a
painful day for millions of women all across the country who are
rightly worried about losing their basic civil rights. It is a painful
day for the brave and courageous survivors who have had to relive their
trauma and, in some cases, have found the courage to tell their story
for the very first time.
It is also a painful day for men who hope to see this Senate stand on
the right side of history.
Today, in just a few hours, the U.S. Senate is going to turn its back
on righteousness. It is going to turn its back on fairness and reason,
and, make no mistake, it is going to turn its back on women.

[[Page S6657]]

What we have seen over the last few weeks is an exercise of power:
Who has it and who doesn't. Rather than a search for the truth, we have
seen those in power ram through a nominee who is unfit to serve on the
Supreme Court. Ultimately, this is about the power structure of
America, but it is changing, and it is changing fast.
I want to say something right here from the Senate floor to every
woman in America who is listening: I hear you. Many of my colleagues in
the Senate hear you. We hear your stories. We hear your voices, and we
will be certain they will not go unheard.
I have heard from constituents all across my State. I have been
talking to people for the last several months, and I have been talking
to people specifically about this nominee for the past several weeks. I
have heard from friends who have been sexually assaulted. I have heard
from friends whose daughters have been sexually assaulted. I have heard
from people who are outraged about what is happening in this country
right now--outraged at a process that doesn't seek the truth and
doesn't seem to be fair.
Unfortunately, it is a moment when survivors are having to relive the
worst moments of their lives in real time by just watching the news.
So I am going to read a little bit of information that was submitted
to the Senate Judiciary Committee on September 27 by Jessica Davidson
from End Rape on Campus. She writes a very heartfelt letter about her
own trauma, about her own experience with sexual violence, and about
the representation she provides from her organization.
She writes:

We envision a world in which each individual has an
educational experience free from violence, and until then,
that all survivors are believed, trusted, and supported. Each
year, we assist nearly 1,000 survivors and their families
directly, conduct educational campaigns, support student
activists, and to advocate for policy reform efforts that
reach millions of individuals.

She asked:

How many more viral online moments must be created before
an incredible harm and trauma we have experienced is enough
to be taken seriously when a survivor comes forward? And why
is the burden always shifted to those who have experienced
the harm?

She says an American is sexually assaulted every 98 seconds. Just
imagine how many lives are being destroyed.
She says more than an estimated 17,700,000 women and 2,780,000 men
have experienced an attempted or completed rape since 1998; 3 million
college students will be sexually assaulted this fall alone; 18,900
military servicemembers bravely serving our country experienced sexual
assault in 2014; and one in every four voters in the United States is a
survivor--more than half of all voters in the United States know a
survivor. Survivors make up a significant portion of each U.S.
Senator's constituencies, and survivors everywhere deserve to know that
if they come forward, they will be taken seriously.
I received thousands of calls, hundreds of letters, and I have read
some of those letters this morning. They are so disturbing and so
upsetting. I can't imagine what that must be like to deal with in this
moment that we are in when you have Members of the Senate who either
don't believe credible survivors or, if they do believe them, they
don't care.
For every survivor out there who feels she is not being heard, not
being listened to, not being believed, I want you to know there are
those of us here who do believe you, who have heard you, and who will
fight for you. Your voices are being heard, and they do matter. Your
willingness to protest, to stand tall, to speak out, and to speak
clearly over these last few weeks has been extraordinary. It has been
powerful. It has been meaningful. It has made a difference.
So do not fear that what you have done was a waste of time. Do not
fear that speaking out doesn't matter because it does. The energy and
inspiration you have created is going to drive this movement forward.
I also want to talk a little bit about why Brett Kavanaugh should not
be serving on the Supreme Court, why he doesn't deserve this seat, and
I want to talk a lot about his record and what we know about Brett
Kavanaugh as an individual.
Over these last few weeks, we have learned a lot about this nominee,
even before we found out that more than one woman had accused Judge
Kavanaugh of sexually assaulting her. His judicial record was already
clear, and many of us made our decisions to oppose Judge Kavanaugh
based on that record--that judicial record and statements alone. That
was the first reason I opposed him--because I have no doubt he will
undermine women's rights on the Supreme Court.
I will say more about his judicial record in a moment, but what we
all saw and heard over the last few weeks isn't something that you can
actually discern from a judicial record. More than one woman has come
forward with sworn statements under penalty of perjury, saying Brett
Kavanaugh committed acts of sexual misconduct against them. One of
them, Dr. Blasey Ford, even bravely testified before the Senate
Judiciary Committee. She was under oath, and she relived one of the
worst moments of her life on national television. She was credible. I
believed her.
When my colleagues asked her what she remembered most clearly, her
strongest memory was the laughter. She said that ``indelible in the
hippocampus is the laughter--the laugh, the uproarious laughter between
the two, and their having fun at my expense.''
She said: ``They were laughing with each other.'' She said: ``I was,
you know, underneath one of them while the two laughed, two friend--two
friends having a really good time with one another.''
She was direct, and she did not evade any questions. She did not duck
or dodge like someone who was trying to hide the truth.
When my colleagues asked her with what degree of certainty did she
believe Brett Kavanaugh assaulted her, she said: ``One hundred
percent.''
When I was watching her testimony sitting there in the room, there
were many moments when her testimony brought me to tears. I thought the
way she opened was particularly moving. She said:

I am here today not because I want to be. I am terrified. I
am here because I believe it is my civic duty to tell you
what happened to me while Brett Kavanaugh and I were in high
school. I agonized daily with this decision throughout August
and early September 2018. The sense of duty that motivated me
to reach out confidentially to the Washington Post,
Representative Eshoo's office and Senator Feinstein's office
was always there, but my fears of the consequences of
speaking out started to increase.
During August 2018, the press reported that Mr. Kavanaugh's
confirmation was virtually certain. His allies painted him as
a champion of women's rights and empowerment. I believed that
if I came forward my voice would be drowned out by a chorus
of powerful supporters.
By the time of the confirmation hearings, I had resigned
myself to remaining quiet and letting the committee and the
Senate make their decision without knowing what Mr. Kavanaugh
had done to me. At the same time, my greatest fears have been
realized and the reality has been far worse than I expected.
Apart from the assault itself, these last couple of weeks
have been the hardest of my life. I have had to relive my
trauma in front of the entire world and have seen my life
picked apart by people on television, in the media, or in
this body who have never met or spoken with me. I have been
accused of acting out of partisan political motives. Those
who say that do not know me. I am a fiercely independent
person and I am no one's pawn.
My motivation in coming forward was to provide the facts
about how Mr. Kavanaugh's actions have damaged my life so
that you can take that into serious consideration as you make
your decisions about how to proceed. It is not my
responsibility to determine whether Mr. Kavanaugh deserves to
sit on the Supreme Court. My responsibility is to tell the
truth.

That is a woman of extraordinary humility and extraordinary courage.
I want to compare Dr. Blasey Ford's testimony to Judge Kavanaugh's
testimony right after her. We all saw it. Some of my colleagues have
suggested that because multiple women were making very credible
accusations against Judge Kavanaugh that he had a right to be angry,
that he was right to come out strong and fight back, like a politician
would. Really? Is that how a judge is supposed to act? Not according to
Judge Kavanaugh.
I want to quote from a law review article he wrote 2 years ago about
how a good judge is supposed to act:

To be a good judge and a good umpire, it is critical that
you have the proper demeanor. We must walk in the shoes of
other judges, the lawyers, and the parties.
It is important to understand then to keep our emotions in
check, and be calm against

[[Page S6658]]

the storm. To put it in the vernacular: to be a good umpire
and be a good judge, don't be a jerk.

Judge Kavanaugh would have been well served to listen to his own
advice.
I was shocked by his tirade against my colleagues and my party. I was
disturbed by its vindictiveness, his animosity. I want to quote from
his testimony to remind you of exactly what he said at his hearings.
Every time I see these words, I am in disbelief that a sitting Federal
judge--a nominee for the Supreme Court--said them to the Judiciary
Committee in prepared testimony under oath.
He said:

This whole two-week effort has been a calculated and
orchestrated political hit, fueled with apparent pent-up
anger about President Trump and the 2016 election.
Fear that has been unfairly stoked about my judicial
record.
Revenge on behalf of the Clintons. And millions of dollars
in money from outside left-wing opposition groups.

Supreme Court Justices are supposed to be thinking about the law and
only the law, not elections, not political parties, but now we know
exactly what Judge Kavanaugh is thinking about. He is thinking about
politics. He is thinking about leftwing conspiracies. He is thinking
about the 2016 election and Trump and the Clintons.
Those aren't my words; those are his words, his testimony. He said
them directly to the committee under oath while the entire Nation was
watching. He showed us his true colors. He showed us what he does when
he is under pressure. He showed us how he really feels about our
politics and our political parties, even though he said he always stays
far away from politics because judges aren't supposed to go there.
He showed us what he really thinks, deep down, when his back is
against a wall. Think about that. A sitting Federal judge, a nominee to
the Supreme Court, shouting--shouted about Democrats trying to take him
down.
It makes me wonder, even if you love every judicial decision this
judge has ever written, how can any of my colleagues argue, after
hearing that tirade, that this judge is unbiased? It makes me wonder
how any of my colleagues can ignore that fact. It makes me wonder, to
my colleagues who are so desperate to confirm Brett Kavanaugh at all
costs, what decisions by this judge are you so eager to see? What do
you already know about how the supposedly fairminded judge is going to
rule that you would risk the Court's reputation by putting such a
blatant partisan on the bench?
A retired Supreme Court Justice, John Paul Stevens, who was appointed
by a Republican, even came so far as to change his mind and oppose
Judge Kavanaugh. Why? Because Judge Kavanaugh is now clearly biased. He
said:

He has demonstrated a potential bias involving potential
litigants before the court that he would not be able to
perform its full responsibilities.
And I think there is merit in that criticism and that the
Senators should really pay attention to it.
For the good of the court, it's not healthy to get a new
justice that can only do a part-time job.

I agree with that. When the next big gerrymandering case comes before
the Supreme Court, we already know how Judge Kavanaugh feels about
Democrats because we heard directly from him at the hearing, so we
can't expect him to rule fairly in that case.
What if a forced arbitration case related to sexual harassment comes
before the Court? We all heard Judge Kavanaugh say under oath that
credible allegations of sexual assault are nothing but a leftwing
conspiracy, so we can't expect him to rule fairly on that one either.
There are real consequences to the bias and partisanship and anger
Judge Kavanaugh showed at his hearing. I am incredibly disappointed by
this, and I hope my colleagues think about this one last time before
they cast their votes today.
I would like to talk a little bit about his record as a judge. Whose
side does he take? Whom does he believe?
In one case, in a dissent, Judge Kavanaugh said employers should not
have to give their workers insurance that covers birth control if they
don't want to. In other words, he thinks a boss's religion is more
important than a worker's religion. Does that sound fair to you, Madam
President?
In another case, he had to decide whether a pregnant teenage
immigrant girl should be allowed to have an abortion. He made her wait
for 9 weeks before he said no, and then he was overruled by his
judicial colleagues. He said he didn't think what he did to the girl
was an undue burden. Does that sound fair to you?
Let's not forget that President Trump said he wanted the new Supreme
Court Justice to overturn Roe v. Wade, that he wanted to nominate
someone who would automatically vote to overturn it. He chose Brett
Kavanaugh to get the job done.
If this Chamber confirms Judge Kavanaugh, I have no doubt that the
Supreme Court will take away women's reproductive rights. I have no
doubt that the Supreme Court will tell women they aren't allowed to
make their own decisions with their own doctors about their own health.
I want to speak about another part of his record. Judge Kavanaugh
wrote in an opinion that if the President doesn't like a law, then the
President could ignore the law and ignore the courts. This is what he
said. As you listen to this, let me know if you think this is
judicially sound judgment. 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.''
Anyone with the most basic understanding of how our constitutional
system of government works knows that this is not what our Founding
Fathers designed. Anyone who has been paying attention to President
Trump's attacks on our institutions and his repeated attempts to
undermine the Mueller investigation should be alarmed by that statement
alone. It makes me think President Trump's choice for this nominee was
because he wanted to be protected from the Mueller investigation.
I am also deeply concerned about Judge Kavanaugh's record on money in
politics.
It should come as no surprise that Judge Kavanaugh is on the side of
big money interests that pollute our political system. Kavanaugh was
handpicked by White House Counsel Don McGahn, a former FEC Commissioner
who was notorious for his hostility toward campaign finance laws.
Indeed, Judge Kavanaugh fulfills President Trump's promise to nominate
individuals in the mold of Justice Scalia, a steadfast opponent of
campaign finance regulations.
Like McGahn and Justice Scalia, Kavanaugh has made his opposition to
campaign finance laws clear during his time on the DC Circuit.
In 2011, Kavanaugh authored an opinion that would allow foreign
nationals to spend unlimited funds on issue ads in U.S. elections. Let
me say that again. Kavanaugh authored an opinion that would allow
foreign nationals to spend unlimited funds on issue ads in U.S.
elections. That is the Bluman v. FEC decision.
Kavanaugh presided over a lawsuit brought by foreign persons living
in the United States who wanted to make campaign contributions to
candidates in U.S. Federal elections. Although Kavanaugh upheld
provisions of Federal election law banning foreign persons from
contributing directly to a candidate or party, Kavanaugh found that
federal election law ``does not restrain foreign nationals from
speaking out about issues or spending money to advocate their views
about issues.''
Under his reading of Federal election law in Bluman, Kavanaugh would
only take issue with a small fraction of the election meddling
perpetrated by the Russian operatives indicted by Special Counsel
Mueller.
At his confirmation hearing, Judge Kavanaugh was given the
opportunity to directly address the possibility that his decision in
Bluman opened the door for ``Vladimir Putin . . . to buy issue ads in
American elections.'' Judge Kavanaugh's response to Senator Whitehouse
was misleading, indicating that the Supreme Court affirmed the case
unanimously, which, while true as to foreign contributions to
candidates, was not true on the point of issue ads.
Indeed, Judge Kavanaugh's response to a question for the record from
Senator Coons also revealed his misleading response to Senator
Whitehouse's question. He wrote: ``The challengers in Bluman did not
seek to make contributions to organizations that make

[[Page S6659]]

expenditures on issue ads. The opinion made clear that the court's
`holding does not address' whether `Congress might bar' foreign
nationals living temporarily in the United States `from issue advocacy
and speaking out on issues of public policy.' '' The Supreme Court
unanimously affirmed the decision.
Judge Kavanaugh seeks to have it both ways. He brags about his
opinion being unanimously upheld by the Court, but when he is
confronted with the real-world consequences of his decision, he hides
behind the pleadings.
According to Special Counsel Mueller's indictment, the issue ads run
by Russian operatives seeking to meddle in the 2016 election include
the messages ``JOIN our #HillaryClintonForPrison2016''--I don't even
want to read the others; they are so horrible. ``Donald wants to defeat
terrorism . . . Hillary wants to sponsor it.'' Yet Judge Kavanaugh's
Bluman decision would permit foreign actors to run advertisements like
the ones above without consequence. In fact, legal briefs filed by
lawyers for the Russian operatives indicted by Special Counsel Mueller
cite Kavanaugh's Bluman opinion for the proposition that ``[f]oreign
nationals are not barred from issue advocacy . . . such as what is
described in the indictment.''
Judge Kavanaugh opposes limitations on big money in politics. During
his confirmation hearing, Judge Kavanaugh was confronted by Senator
Klobuchar with an email he wrote in March 2002 wherein he suggested
that contribution limits could be unconstitutional: ``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 limits have
some constitutional problems.'' When Senator Klobuchar pressed Judge
Kavanaugh on whether he believed that ``contribution limits have
constitutional problems,'' Judge Kavanaugh evaded the question and
issued a nonresponsive answer.
In a 2016 American Enterprise Institute speech, Kavanaugh said that
political spending ``absolutely'' deserves First Amendment protection
because ``to make your voice heard [in politics] . . . you need to
raise money to be able to communicate to others in any kind of
effective way.''

In 2009, in EMILY's List v. FEC, Kavanaugh heard a challenge to
multiple FEC regulations restricting the use of ``hard-money'' by
nonprofit organizations in Federal elections. These particular
regulations were passed in striking down these regulations. Kavanaugh
held that nonprofit organizations are ``constitutionally entitled to
raise and spend unlimited money in support of candidates for elected
office'' because it is ``implausible that contributions to independent
expenditure political committees are corrupting.''
These are really concerning statements about unlimited money and
spending in politics from foreign nationals on issue ads and from
moneyed interests. I do not believe that money is speech, and I do not
believe that corporations should have the same free speech rights as
individuals, but Judge Kavanaugh does, and I find that to be deeply
troubling.
Judge Kavanaugh also has a very disturbing record when it comes to
rolling back the civil rights of millions of Americans.
In his time as a judge, Brett Kavanaugh has consistently sided
against Americans who are trying to exercise their civil rights. From
voting rights, to employment discrimination, to the rights of those
with disabilities, Kavanaugh has taken positions that perpetuate
inequality. Judge Kavanaugh's record leaves little doubt--if confirmed
to the Supreme Court, he will continue to roll back the hard-won rights
of millions of Americans.
As a partner at Kirkland & Ellis, Kavanaugh was involved in Rice v.
Cayetano, which challenged Hawaii's right to limit participation in an
election for the State's Office of Hawaiian Affairs to Native
Hawaiians. In a brief he cowrote with Robert Bork and Roger Clegg--the
latter of whom heads the anti-affirmative-action Center for Equal
Opportunity--Kavanaugh argued that restricting participation to Native
Hawaiians was unconstitutional. According to Kavanaugh, it did not
matter that Hawaii's ``voting qualification in elections for the Office
of Hawaiian Affairs [was] designed to remedy past discrimination in
voting against `Hawaiians' in Hawaii.'' Discussing that decision in a
1999 interview, Kavanaugh said that the ``case is one more step along
the way in what I see as an inevitable conclusion within the next 10 or
20 years when the court will say we are all one race in the eyes of
government.''
Kavanaugh's adoption of Justice Scalia's approach from Adarand
Constructors v. Pena that ``in the eyes of government, we are [all]
just one race'' indicates a belief that the government should be
``color blind.'' Under this theory, affirmative action and minority
contracting requirements would be constitutionally prohibited.
Those are just some of the issues that I care about and that New
Yorkers care about. I am very troubled about this nominee for so many
reasons--for his record, for his beliefs, for his judicial temperament,
for how he treated women Senators during that hearing.
When we vote on this nomination later today, when we decide whether
Judge Kavanaugh deserves to have the privilege to serve on the Supreme
Court, there is just one fundamental question that I believe should be
on all of our minds when we make this decision: Do we as a country
value women? Does the Supreme Court value women? Does the Senate value
women? Does the President? Most of all, does Brett Kavanaugh value
women?
Millions of Americans--millions of women--are watching us today. They
are waiting to see whether, when a woman comes forward and says she is
a survivor of sexual assault, this Chamber--do the individuals here
take her seriously? Do we listen to her, or do we disregard her and
disbelieve her and patronize her?
The last 2 weeks have been so incredibly painful for women who have
experienced sexual trauma, for survivors all across this country. When
they are watching some of the most powerful people in this country
disregard Dr. Blasey Ford--they distrust her, they disbelieve her, and
they devalue her--it is painful for all of them. It is painful because
they are tired of seeing the same old outcome every single time. They
are tired of the same old scenario where the men are believed and the
women are not. They can't believe their eyes when they see two women
being treated with so little respect and with less of a process than
even Anita Hill received.
One of the worst parts of this process has been that we have been
through it before. Almost three decades ago, Anita Hill sat right where
Dr. Blasey Ford sat. She went through the same kind of cross-
examination. She was disbelieved. She was patronized. She was
disrespected. We said we would never put another woman through that. We
said we had learned lessons from that fiasco. We said it would never
happen again, but it did. And I really believe that the process over
the last few weeks was shameful. We should have learned from our
mistakes, and we should be doing much better.
But I can tell you, America's women are watching. They are watching
what our leaders decide to do. They are watching who is listening and
who is not. And they have made a decision that I could have never
imagined or predicted. So many women in this country--and men--have
made the decision since President Trump was elected that they are going
to be heard. They are going to march. They are showing up at townhalls.
They are showing up outside of Federal offices. They are coming to
Washington. They are knocking on Senate doors. They are speaking out.
They are protesting. They are carrying signs. They are speaking their
truth, and they are speaking truth to power in a way they perhaps never
imagined they would do.
They are running for office. Over 200 women are running for Congress
alone as nominees of their party this year--more than ever in the
history of America. They are working hard to right the wrongs that they
see happening in this country.
They know that what makes this country great--what has always made
this country great--is that we have cared about one another, that we
are a country that believes in the golden rule, and that we are a
country that believes you should care about the least among us.

[[Page S6660]]

Every generation has tried to make this country a more perfect union.
Whether it is fighting to end slavery through abolition; whether it is
fighting for basic voting rights for all Americans through the
suffragist movement; whether it is the civil rights movement saying
that equality is necessary in this country and people must be protected
by the law; whether it is the LGBT equality movement to ensure that we
can marry the people we love; whether it is people's desire today to
ensure healthcare as a right and not a privilege, this is what our
country is about.
I deeply feel that the process over these last few months has turned
our backs on that basic desire to bring our country to a more perfect
union, to a place where we value one another.
Do we value women? Unfortunately, for too many in this Chamber, the
answer is no.
I hope the American people are listening. I hope they are watching. I
hope they will fight for what they believe in, their values, and what
this country stands for.
I yield the floor.
The PRESIDING OFFICER (Mr. Rounds). The Senator from Minnesota.
Ms. SMITH. Mr. President, I thank the Senator from New York for her
terrific words this morning. I am so grateful to be here with her
today.
I rise today to express my opposition to the nomination of Judge
Brett Kavanaugh to the Supreme Court of the United States. From the
time his nomination was announced, it has been clear to me what type of
Supreme Court Justice Judge Kavanaugh would be, and I firmly believe he
is not the Justice our country needs. Appointing Judge Kavanaugh to the
Supreme Court would be bad for Minnesotans and bad for our country.
First this morning, I would like to speak about the aspects of Judge
Kavanaugh's record and scholarship that I find most troubling--his
decisions on women's freedoms, the environment, voting rights, and his
views on Executive power. Next, I would like to discuss why Judge
Kavanaugh's temperament and credibility demonstrate that he does not
merit the trust and confidence necessary for the Senate to appoint him
to a lifelong appointment to our Nation's highest Court.
I have been opposed to Judge Kavanaugh's nomination since the
beginning because his record shows that he is far outside the
mainstream of legal thought on issues that matter to Minnesotans, such
as women's freedoms, healthcare, voting rights, and the environment.
If you remember, we knew quite a lot about Judge Kavanaugh before he
was even formally named as President Trump's Supreme Court nominee.
This is because Judge Kavanaugh's name was chosen from a short list
prepared by the far-right Federalist Society and Heritage Foundation.
This list contained 25 potential nominees who were selected because
they could be trusted to fulfill President Trump's repeated campaign
pledge to appoint Justices who would ``automatically'' overturn Roe v.
Wade and dismantle the Affordable Care Act.
While we can assume that nominees drawn from that short list have
convinced the Federalist Society and the Heritage Foundation that they
passed these two litmus tests, Judge Kavanaugh has a judicial record to
prove it. Therefore, from the time his name first appeared on President
Trump's short list, we knew what kind of Justice he would be--one that
is out of step with the American people, the legal academy, and the
clear dictates of our Constitution, which promise liberty and equality
for all and not just for the privileged few. This is not what our
country needs, especially now.
A review of Judge Kavanaugh's record shows it includes restricting
women's freedoms, supporting efforts to suppress the votes of
minorities and low-income people, reliably siding with polluters at the
expense of the public's health and allowing unlimited dark money to
influence our elections. I find this record deeply concerning. It is
evidence that if confirmed, Judge Kavanaugh would take this country
backward, reversing course on decades of hard-won progress.
So my assessment of his judicial record is enough for me to conclude
that Judge Kavanaugh is not the type of jurist Minnesotans need on the
Supreme Court. In this time of unprecedented political polarization,
our country needs confidence in knowing that the Supreme Court can
fulfill the constitutional promise that we are all equal before the
law.
That is why I had hoped President Trump would nominate a consensus
Justice--someone dedicated to protecting the rights of all Americans.
Yet it is clear Judge Kavanaugh will not be that Justice. So I would
like to talk in more depth about three of the reasons it is clear to me
that based on his judicial record, Judge Kavanaugh is more dedicated to
advancing a far-right partisan policy agenda than in defending the
equal rights of all Americans.
First, a judge who would let the government restrict women's access
to reproductive healthcare is not someone who is dedicated to
protecting the privacy, dignity, and freedom of all women.
Last year, Judge Kavanaugh wrote a dissent in a case called Garza v.
Hargan, in which he sided with the Trump administration in its attempt
to prevent a young immigrant woman from accessing an abortion. Even
though this young woman had complied with every State legal
requirement, Judge Kavanaugh argued that the Federal Government could,
nonetheless, prevent her from obtaining an abortion until she could be
placed with a sponsor. That process took weeks and jeopardized her
ability to obtain a procedure at all. Yet, in his dissent, Judge
Kavanaugh concluded that this government-caused delay did not
constitute an undue burden on this woman's constitutional right to make
her own decisions about her reproductive healthcare.
When Senator Durbin questioned him about this case before the Senate
Judiciary Committee, Judge Kavanaugh repeated his familiar refrain that
he was just following precedent, but the majority of his fellow judges
on the DC Circuit Court of Appeals read the Supreme Court's precedent
on this issue very differently, as do I.
In Planned Parenthood v. Casey, the Supreme Court firmly established
that our constitutional right to privacy protects women from ``unduly
burdensome interference with her freedom to decide whether to terminate
her pregnancy.'' This has come to be known as the undue burden
standard. It means the government is prohibited from making laws,
rules, or policies that have the ``purpose or effect of placing a
substantial obstacle in the path of a woman seeking an abortion.''
Yet Judge Kavanaugh saw no problem with forcing this young woman to
wait 9 weeks to obtain the medical care she needed--the medical care a
Texas judge agreed she was competent to request and entitled to obtain.
Instead, in arguing that this delay was justified, Judge Kavanaugh
implied that this young woman was incapable of making her own medical
decisions because she did not have her ``family and friends to rely
on'' in her decision-making process.
I trust women to make these decisions for themselves and their
families, and I am here to tell you that women do not need the
government looking over their shoulders in the examination room and
telling them what they can and cannot do. As the only Senator who has
ever worked at Planned Parenthood, I know that when women do not have
the freedom to make their own choices about their reproductive
healthcare, they lose the freedom to direct their own lives--their
personal lives, their families, their economic security.
I believe we deserve a Supreme Court Justice who is dedicated to
protecting a woman's right to make her own private decisions about her
reproductive healthcare. Yet, based on his dissent in the Garza case
and the President's repeated promises to nominate only anti-choice
Justices, it is clear that if confirmed, Judge Kavanaugh would continue
to chip away at this fundamental freedom.
The second reason it is clear Judge Kavanaugh is not dedicated to
protecting all Americans equally is, he has repeatedly ruled against
restrictions on pollutants that threaten our health. He has not been
dedicated to protecting the air we breathe, the water we drink, and the
land we share.

[[Page S6661]]

In a 2012 case, Judge Kavanaugh authored an opinion that found the
Environmental Protection Agency had exceeded its authority when the
Agency told upwind States to, literally, stop blowing smoke onto their
downwind neighbors. Then, in 2014, Judge Kavanaugh objected to using
the Clean Air Act to establish programs to reduce mercury--a potent
toxin that harms developing brains--and greenhouse gases.
Judge Kavanaugh's narrow view of the Clean Air Act could be extremely
harmful to our efforts in addressing climate change by regulating
greenhouse gases. Although the Act does not mention greenhouse gases by
name, the Supreme Court has held that the EPA does have the power to
regulate them. In fact, the Court held that the act requires the EPA to
address any air pollutants that are found to endanger human health. I
agree with the Supreme Court as do most Americans. An April 2018 poll
found that 75 percent of Americans support even stricter limits on
smog.
Judge Kavanaugh claims to believe what virtually every scientist
tells us; that manmade climate change is real, and it is an enormous
threat to our planet and our health. Yet he still seems to have a
problem with allowing the government to take action to protect us from
new pollutants which threaten our health.
At a time when President Trump is attempting to backpedal on every
commitment our country has made toward fighting global warming, it is
more imperative than ever that we have a Supreme Court Justice who
believes in our collective right to protect and preserve our planet.
President Trump is pulling out of the Paris climate agreement. He is
pulling back the Clean Power Plan. He is looking for ways to force
utilities to keep expensive coal plants online, a move that would cost
Americans billions of dollars in increased electricity bills. All of
these moves will hurt the environment and harm the health of the
American people, and in each case, Judge Kavanaugh's record shows he is
likely to act as an enabler.
The third area in which Judge Kavanaugh has demonstrated that he is
likely to serve the interests of a far-right partisan agenda rather
than the interests of our democracy is with regard to voting rights.
A judge who upholds a State law that makes it harder for minorities
and low-income people to vote is not someone who is going to be
dedicated to protecting our most fundamental democratic right--the
right to vote. If Judge Kavanaugh is confirmed to the Supreme Court,
there is no doubt he will help his friends in far-right special
interest groups--the same groups that recommended his nomination in the
first place--to continue their coordinated campaign to make it harder
for millions of Americans to vote.
These groups know they can count on Judge Kavanaugh to uphold laws
that make it harder rather than easier for people to vote. These groups
have helped Republican-controlled State legislatures pass laws that are
designed to create obstacles at every step of the voting process,
making it more difficult to register to vote, to cast your ballot, and
to have your vote counted equally.
As a judge on the DC Circuit Court of Appeals, Judge Kavanaugh has a
record of supporting these laws, including laws that perpetuate voting
discrimination, particularly against communities of color. In 2012, he
wrote an opinion for a three-judge panel that upheld South Carolina's
stringent voter ID law even though the Department of Justice had
determined the law would violate the Voting Rights Act of 1965.
I am proud to represent the State with the highest voter turnout in
the Nation. Minnesotans understand that when the right to vote is
restricted, it undermines the very foundation of our democracy. Our
voting laws reflect our beliefs about who should have a voice in this
country, and I am profoundly concerned that his record shows that Judge
Kavanaugh will allow States to pass laws that will make it harder for
communities of color and low-income people to make their voices heard.
Minnesotans and all Americans deserve a Supreme Court Justice who is
committed to making our democracy more representative so we remain a
government for the people and not just some of the people, and it is
clear Judge Kavanaugh would not be that Justice.
Judge Kavanaugh's record as a judge on the DC Circuit Court of
Appeals and the process that led to his nomination were enough to
convince me that he should not be elevated to the Supreme Court. His
decisions and opinions demonstrate that he should not be entrusted with
protecting the hard-won rights and freedoms of all Americans.
It is troubling enough that Judge Kavanaugh could be the deciding
vote on cases that affect every aspect of life in America--cases that
determine whom you can marry, whether you can access healthcare, or
your rights in the workplace. I am also extremely concerned about Judge
Kavanaugh's commitment to fulfilling the other sacred responsibility of
our Supreme Court--to be a check against legislative and executive
overreach as a coequal branch of our government.
The very design of our system of constitutional checks and balances
demonstrates that no one, not even our elected leaders, is above the
law. This is a fundamental American principle, but Judge Kavanaugh has
a dangerously expansive view of Executive power that is well outside
the mainstream of current legal thought.
He has repeatedly argued that Presidents, effectively, are above the
law. His writings and speeches suggest he believes a sitting President
cannot be indicted or prosecuted. He has argued that Presidents can
only be investigated by Congress, which raises questions about his
views of the constitutionality of the ongoing Mueller investigation.
Perhaps what is the most troubling is, he has claimed Presidents don't
have to enforce laws they believe are unconstitutional.
Kavanaugh's expansive views of the limits of Executive power suggest
he would abdicate the solemn responsibility of the Court to both hold
the executive branch accountable to its constitutional duties and to
prevent it from engaging in constitutional excesses.
The need for the other branches of government to be a strong check
against an errant executive has, arguably, never been greater. Yet
during his confirmation process, Judge Kavanaugh refused to answer even
the most basic questions about his views on Executive power and
accountability. He also refused to answer Senators' questions about
topics like whether he believes a President can be required to respond
to a subpoena or whether a President can pardon himself or pardon
others in exchange for their silence.
It is easy to see why President Trump would want a Supreme Court
nominee who believes a President is above the law. It is not easy to
see how this body can consider confirming him without learning more
about whether he is prepared to help the Court fulfill its duty as an
independent, coequal branch of government.
For all of these reasons, I believe Judge Kavanaugh's jurisprudence
and scholarship provide a more than sufficient basis for opposing his
nomination.
Now I turn to the Senate Judiciary Committee hearings last Thursday.
I was grateful for Dr. Blasey Ford's powerful testimony before the
Senate Judiciary Committee and to the American public. Since her
testimony, my office has received dozens of letters from survivors of
sexual assault, some of whom are telling their stories for the first
time. In reading these letters, I have been heartbroken by their trauma
and pain, which we know is suffered by too many in this country. Many
of these survivors were victimized by people they knew and trusted.
Some were too young to have words to even describe their assaults. Some
tried to come forward and report their abuses but gave up when they
faced doubt and shame and suspicion from those who should have helped
but didn't. All of them deserve to have their stories taken seriously
and to be fully investigated.
So I want to acknowledge that this is an important, historic moment--
one that shows us the cultural forces that seek to shame and silence
survivors of sexual violence are shifting and that survivors and those
who love them and those who stand with them are watching this process
very carefully.

[[Page S6662]]

In stark contrast to the clarity and conviction of Dr. Blasey Ford's
testimony, to me, Judge Kavanaugh's performance raised deep questions
about his temperament and credibility. Judge Kavanaugh showed us he has
an injudicious temperament, a powerful sense of entitlement, and a
partisan perspective that was right out there for everyone to see. He
showed us who he is--and I believe him--and I firmly believe these
characteristics disqualify him from elevation to the Supreme Court.
Judge Kavanaugh showed us he thinks his professional qualifications
exempt him from personal scrutiny, but an appointment to the Supreme
Court requires more than a pristine legal resume; it requires a
strength of character, which we now know from his own testimony that
Judge Kavanaugh does not possess.
His impulse, when challenged, is to lash out with conspiratorial,
partisan invective--unbecoming of any nominee to the Federal Bench. His
behavior, which, incidentally, he would never allow from a litigant in
his own courtroom, was angry, disrespectful, even ranting.
I was particularly struck by the disrespect he showed to my good
colleague and friend, the senior Senator from Minnesota, Amy Klobuchar.
When she asked Judge Kavanaugh about his history with alcohol, he
became defensive; refused to answer her question; and actually turned
the question back at her. To my mind, this showed a lack of respect not
just for Senator Klobuchar but for the whole Senate and our
constitutional duty to provide advice and consent to the President's
nominees.
I think all of my colleagues should be deeply disturbed by the
nominee's angry and disrespectful behavior. I urge all of my colleagues
to ask themselves whether they believe Judge Kavanaugh possesses the
steady, sensible temperament we should expect from all of our Federal
judges but, most especially, from those on the highest Court in the
land. I believe Judge Kavanaugh showed us to be incapable of being an
impartial and nonpartisan judge when he said he holds Democrats
responsible for an ``orchestrated political hit.''
The Framers designed the Supreme Court to be above the partisan fray.
In his testimony on Thursday, Judge Kavanaugh abandoned any pretense
that he could live up to his own description of a good judge, one that
is ``an umpire--a neutral and impartial arbiter who favors no litigant
or policy.''
In his initial testimony before the Judiciary Committee, Kavanaugh
warned:

The Supreme Court must never, never be viewed as a partisan
institution. The justices on the Supreme Court do not sit on
opposite sides of an aisle.

If this body elevates Judge Kavanaugh to the Supreme Court after his
nakedly partisan diatribe on Thursday, how can the American people
believe the Court's decisions are anything other than arbitrary and
partisan, and the work of ideologues? Judge Kavanaugh's shocking
behavior last Thursday bears directly on the legitimacy of the Supreme
Court--our third coequal branch of government.
Over the next few years, the Supreme Court will be called upon to
decide important legal questions that will affect the lives of all
Americans. Given Judge Kavanaugh's performance last Thursday, the
American people will have to wonder: Does Justice Kavanaugh see the
Supreme Court as the ultimate venue for providing justice or as a tool
for advancing and securing a partisan agenda?
Not only did Judge Kavanaugh's performance last Thursday give us
reason to doubt whether he has the necessary judicial temperament to
serve on the Supreme Court, but his sworn testimony also raised deep
questions about his credibility.
Judge Kavanaugh showed us that he is willing to be misleading and
evasive when it serves his interests and when he thinks he will be
protected from the consequences of those lies.
When questioned by my colleagues Senator Klobuchar and Senator
Whitehouse, Judge Kavanaugh provided answers that were obviously
disingenuous, if he answered at all. I am concerned that the way he
characterized his behavior during his high school years was less than
fully truthful. His apparent lack of candor with the Senate Judiciary
Committee should be deeply concerning to all of us in the Senate and to
the American public.
Unfortunately, I am not permitted to speak publicly about the details
of the FBI's supplemental background investigation of Judge Kavanaugh,
but after reviewing these materials, I have even deeper concerns about
Judge Kavanaugh's lack of candor. Frankly, the materials raise more
questions than they answer. That is part of why I believe the
supplemental investigation was woefully inadequate.
Some of my colleagues have been saying that this is not a criminal
trial but a job interview. I agree that Judge Kavanaugh is not on trial
here, but this isn't any regular job interview either.
The confirmation process allows for the Senate to determine whether
Judge Kavanaugh deserves the public's faith as he asks to be entrusted
with safeguarding our constitutional and human rights. He is asking for
a lifetime appointment that will allow him to affect the lives and
freedoms of a whole generation of Americans. I believe Judge
Kavanaugh's record and his character preclude him from being worthy of
that public faith.
I urge my colleagues to join me in opposing Judge Kavanaugh's
nomination to the Supreme Court.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. REED. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Paul). Without objection, it is so
ordered.
Mr. REED. Mr. President, I rise to express my strong opposition to
the nomination of Judge Brett Kavanaugh to replace Justice Anthony
Kennedy as an Associate Justice on the U.S. Supreme Court.
I opposed Judge Kavanaugh's nomination to his current seat on the DC
Circuit because I had serious concerns about his partisan history,
expansive view of Presidential power, and his lack of candor about his
work in the Bush White House during his testimony before the Senate
Judiciary Committee. Judge Kavanaugh's work on the DC Circuit
demonstrated that I was right to be concerned about his view that the
President is above the law. I intend to discuss his jurisprudence in a
moment, but first it is necessary to list just how many ways in which
this process has revealed that Judge Kavanaugh lacks the temperament to
serve as a Justice of the Supreme Court.
He began this process by continuing to stonewall, and perhaps even
mislead, Senators about his career as a political operative and
partisan lawyer in the Bush Administration. He dissembled when asked
basic questions about his approach to the law--a tactic we have come to
expect from nominees who have been selected and vetted by far-right
interest groups. Yet when Dr. Christine Blasey Ford, Deborah Ramirez,
and others came forward with serious and credible allegations of sexual
assault against him, this body saw the real Judge Kavanaugh. He emerged
at his second hearing combative, blatantly partisan, disrespectful,
evasive, and in no way reassuring that he has told the truth to this
body and the American people. I will discuss these in turn, but the
bottom line is this: Judge Kavanaugh is unqualified for a seat on the
Supreme Court because he lacks the basic qualities and judgment for a
position that could affect Americans' everyday lives for generations to
come.
The American people are watching this debate with serious, real-world
concerns about what a Justice Kavanaugh would mean for them. They are
worried that they could wake up someday soon to news that a
conservative 5-to-4 majority on the Court has stripped them of their
health insurance, abolished their right to privacy and control over
their reproductive health, or revoked their right to marry whomever
they choose. They see inequality of historic proportions--with the top
1 percent now earning more than the bottom 50 percent combined,
according to the World Inequality Report--and a Supreme Court that
continues to overturn laws that were enacted to prevent corporations
and

[[Page S6663]]

wealthy individuals from using their money to rig the political system.
It is abundantly clear, given Judge Kavanaugh's selection by special
interest groups and the mad rush to confirm him at all costs, that
powerful interests are counting on him to further these trends, which
point to a future in which political power will be directly tied to
wealth and status. Worse yet, given that we still don't know the whole
truth about the allegations against Judge Kavanaugh, continuing this
rush to place him on the Court sends a terrible message to survivors of
sexual assault that accountability for these crimes depends on the
extent to which the accused person serves the interests of the
powerful.
The American people deserve better when it comes to this body's
obligation to advise and consent on the next Supreme Court Justice, and
the majority has failed in that obligation time and again in the course
of this confirmation process.
When my Democratic colleagues and I expressed concerns about whether
a President under such serious criminal investigations should appoint--
prior to seeing the investigative process thorough and completed to the
end--a Supreme Court Justice who likely could be called to rule on
critical matters in a case against the President and his campaign, the
majority ignored us.
When we demanded that Judge Kavanaugh's hearing follow the standard
practice for Supreme Court nominees--providing Senators and the public
alike with access to the nominee's full record of public service
through appropriate document disclosures from the National Archives--
the majority fast-tracked Judge Kavanaugh's hearing before the National
Archives could process the records from his work in the Bush White
House. In place of the appropriate process, the majority enlisted a
private Republican lawyer to curate a small subset of records for
Senators to review, and even that subset was subject to an assertion of
``committee confidentiality,'' meaning Senators were barred from
sharing anything with the public that they may have learned about Judge
Kavanaugh. Thousands more records were withheld under a dubious
assertion of executive privilege. Even given the small number of
Republican-selected records that had been made available to this body,
my Democratic colleagues on the Judiciary Committee uncovered troubling
inconsistencies that called into question whether Judge Kavanaugh had
been truthful in his Senate testimony.
No other nominee for the Supreme Court would get away with this. Why
is the majority giving this free pass to Judge Kavanaugh? Why does he
deserve to shield his record when no other member of the Supreme Court
received such treatment? Why must his documents--records of taxpayer-
funded public service--be controlled by a private Republican attorney
instead of the National Archives like they are for every other man and
woman who currently sits on the Supreme Court? Just what is it about
Judge Kavanaugh that has rendered stalwart defenders of the Senate's
power to review nominees, including those on the Judiciary Committee,
to have such a profound about-face?
No one is entitled to a lifetime appointment to the Supreme Court.
Yet the majority has treated this job like the personal property of
Judge Kavanaugh ever since the President announced his nomination.
My Republican colleagues have said a great deal about the importance
of preserving a fair process for the consideration of the Supreme Court
nominees. Some of these arguments are simply outrageous. In the recent
past, Democrats and the majority worked on a bipartisan basis to obtain
nearly all relevant documents from then-Solicitor General Kagan's work
in the White House before holding a vote on her nomination to the
Supreme Court. Today, we are set to vote on Judge Kavanaugh with
roughly 90 percent of his record still kept secret. Yes, in the recent
past, Democrats made the difficult choice to end Republicans'
historically unprecedented obstruction of hundreds of President Obama's
judicial nominees by eliminating the 60-vote threshold for judicial
nominees, except to the Supreme Court of the United States. Democrats
recognized that the Supreme Court is one of the most important
institutions in this country, that it operates as the effective check
on both the legislature and the executive branches, that it is the
ultimate interpreter of the Constitution of the United States, and that
in order to have members on that Court who are consistent with the
Constitution and thoroughly accountable to the American people, not
special interests, a simple majority to get to the Court is inadequate.
This process demonstrates that.
Last year, they broke historical precedent and basic decency by
denying Chief Judge Merrick Garland so much as a meeting or a hearing
on his Supreme Court nomination. Again, for over a year, the Republican
majority refused to consider the nomination of Judge Garland to the
Supreme Court, and now they insist we have to move expeditiously to
fill this gap, that it is so critical that we can't wait 2 weeks, 3
weeks, or 4 weeks for a thorough investigation. We have to do it now.
But we didn't have to do it when President Obama submitted, pursuant to
the Constitution, the nomination of Judge Garland.
Once Judge Gorsuch was presented to us, the Republicans abandoned the
60-vote threshold, and at every turn, Republicans have, in my view,
escalated these so-called judicial wars, and this rush to confirm Judge
Kavanaugh, despite the allegations against him, brings us closer than
ever to a crisis of confidence in the Court.
The need for more time and more answers with regard to Judge
Kavanaugh's record have become overwhelming since Dr. Ford, Deborah
Ramirez, and others came forward. These women have put aside their
privacy, professional lives, and the safety and security of their
families in order to bring to light their allegations against Judge
Kavanaugh. Regardless of how one feels about the truth of their claims,
they have been met with treatment that should be beneath us as a
nation. They have been mocked and attacked in disgraceful and sexist
terms by public figures who should know better, including the President
himself. They have been called liars, had their motives questioned, and
had their private lives picked apart on the national stage.
The Judiciary Committee has now had the opportunity to hear from Dr.
Ford, and the FBI has conducted a limited background check on some of
the allegations against Judge Kavanaugh, but this process still doesn't
pass the simple common sense test. If there is no truth to these
allegations, as the nominee and our Republican colleagues claim, why
was it so difficult to agree to an FBI investigation in the first
place? For that matter, what serious investigation is forced to finish
in less than a week with limits on which leads it can follow? What
person, upon hearing that a child or a relative of his or her own had
been harmed, would be satisfied with such a short and apparently
outcome-driven process? What is the majority hiding?
I will not parse the details of every allegation against Judge
Kavanaugh here today, but I will say this to my Republican colleagues:
Look around you. Our Nation is undergoing a historic and long-overdue
reckoning with abuse of power, sexual harassment, and sexual assault.
It is regrettable that the Supreme Court confirmation process has once
again become a forum for the larger debate about these matters, but
there is no convenient way to reckon with longstanding and painful
injustice. This is the issue before us, and we must face it. History
will not look kindly, if it looks at all, on those who take the easy
way out, using distraction, false equivalence, and personal attacks to
preserve a partisan win at all costs.
Given the growing number of doubts that this process has raised about
Judge Kavanaugh's honesty and trustworthiness, he cannot begin to meet
the test that I have applied to every Supreme Court nominee, regardless
of party, during my service in the Senate. I have voted against
nominees in the past because I did not believe that their
jurisprudential records demonstrated that they would use their
discretion to give meaning to the promises of the Constitution. But
never before have I had to stand here and oppose a nominee to the
Supreme Court for those very same reasons and because I do not believe
that he is trustworthy. I regret that I must do so now.

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When it comes to Supreme Court Justices, character is a nonnegotiable
requirement. Supreme Court Justices are expected to have a record of
high personal and professional achievement. They are not supposed to be
partisans or politicians. They are given an awesome power for life.
They can certainly have flaws, but their relationship to the truth and
their willingness to avoid the appearance of emotion are not up for
debate. To serve in judgment of 325 million of their fellow citizens,
they must be above the fray, particularly in these difficult and
divided times.
If Supreme Court decisions were simply a mechanical application of
foregone legal conclusions, then it wouldn't matter who sat on the
Court. Rather, a Justice's power rests in the discretion to choose
among competing and well-reasoned arguments to decide how the promises
of the Constitution will apply for generations to come.
In order to support a Supreme Court nominee, I must believe she or he
will use that discretion to give meaning to the American tradition of
equal justice under law. This means strictly scrutinizing laws that
obstruct and distort the effective operation of government and channels
of political participation. It means rejecting arbitrary abuse of power
and demanding the most compelling justification for laws that single
out powerless, discrete, and insular minority groups for disfavored
treatment under the law.
When the Court has acted in accordance with these principles, it has
resolved issues of national concern that threaten to tear the fabric of
our Nation apart, and has done so in a manner that preserves the
perception of impartiality that is vital to our judicial institutions.
The Court struck the final blow against legal segregation. It
safeguarded constitutional voting rights, guaranteed Americans the
power to choose how to start their families, separated church and State
for the mutual benefit of both institutions, and even ordered sitting
Presidents to comply with the law.
The snarling, conspiratorial partisanship that Judge Kavanaugh
displayed at his second hearing was a far cry from the historical
principles that have preserved the Court as an institution. Without
evidence, he blamed ``the left'' and ``left-wing opposition groups''
for revelations about his past behavior, calling it ``a calculated and
orchestrated political hit.'' He characterized Dr. Ford and others as
liars and claimed that their desire to come forward was simply ``pent-
up anger about President Trump and the 2016 election.''
How many of the advocacy organizations that regularly try cases
before the Court fit his definition of ``left-wing opposition groups''?
How is anyone supposed to believe that Justice Kavanaugh would approach
a politically charged case with an open mind after this display?
I fear that some are willing to overlook the clear defects in this
nominee and this confirmation process because they want a Justice
Kavanaugh to deliver long-desired legal victories for partisan causes.
President Trump has clearly expressed his expectations for his nominees
to the Court and even outsourced the vetting process to far-right
special interest groups. The goal of this process is no mystery: a
decisive majority on the Supreme Court that will eviscerate the
underpinnings of Roe v. Wade and undo the constitutional right to
privacy, as well as expand the Second Amendment to block even
commonsense gun safety laws. Critically, the President also wants to
bring even more functions of government solely under the control of the
White House so that he can quickly and easily dismantle protections for
workers, the vulnerable, and the environment.

This wish list is nothing new. It has long been the agenda of groups
like the NRA and the Federalist Society to take control of the Supreme
Court and accomplish from the Bench what they cannot win from the
ballot box. In President Trump and this majority, however, they have
found their opportunity to radically change American law for the few
and the powerful.
I have no illusion about Judge Kavanaugh's familiarity with, and
enthusiasm for, the partisan victories he is expected to deliver for
President Trump and special interest groups as a Justice. It is also
difficult for me to imagine that there would be such a rush to put
Judge Kavanaugh on the Court if he were not a lifelong DC political
operative and reliable partisan and an architect of the conservative
legal movement, which is designed to pack the Federal judiciary with
outcome-driven ideologues like him. He has already amassed a body of
work that shows how he can and will deliver for the movement that has
groomed him for this moment.
Judge Kavanaugh has demonstrated a dangerously expansive view of
Presidential power. The President is not a King, and this is because
the Constitution establishes separation of powers and a system of
checks and balances to ensure that no arm of government can overpower
the others.
The Framers recognized the particular danger of a Supreme Court
without judicial independence. In Federalist 78, Alexander Hamilton
quoted Montesquieu, saying that ``there is no liberty, if the power of
judging be not separated from the legislative and executive powers.''
He added that ``liberty can have nothing to fear from the judiciary
alone, but would have everything to fear from its union with either of
the other departments.''
Based on his writings, I fear that a Justice Kavanaugh is predisposed
to provide the deciding vote on the President's agenda before cases
against him even reach the Supreme Court. For example, the Supreme
Court has never had to decide whether a sitting President can be
prosecuted for Federal crimes. It is perhaps more important now than
ever in our history to ensure that a nominee to the Court can approach
questions of Presidential accountability with independence and an open
mind. Judge Kavanaugh cannot seriously claim to have either on this
issue.
As a veteran of the Starr investigation into the Clinton White House,
Judge Kavanaugh understandably has strong feelings on the issues of
civil and criminal prosecutions of sitting Presidents. In 1998,
Kavanaugh authored a law review article discussing a now-defunct
independent counsel statute in detail and recommending changes to the
statutory scheme. He argued there that Congress should pass a law
prohibiting the indictment of a sitting President until after the
President's term in office. But he made it clear at several points that
he believes such a law would codify what to him is already plain in the
Constitution--that a President is above our criminal law while he holds
office.
His views about Presidential accountability did not evolve over time,
as seen in the various ways he continued to share his views over the
years. In 1999, he told a reporter that he doubted whether the Supreme
Court got it right in United States v. Nixon, the landmark case that
held the President could not always use Executive privilege to escape a
subpoena to turn over records in a criminal case. For those who lived
through Watergate, it was the Supreme Court's decision that I think,
more than anything else, preserved the stability of the Union and the
power of the Constitution over partisan politics. It led to President
Nixon's resignation. It also convincingly showed that the Court could
take a decision seriously with respect to the Constitution without
considering the political effects.
Justice Kavanaugh believes they were wrong, that President Nixon
should have been allowed to defy the Court, defy the country, and
maintain secret the tapes of his discussions in the White House that
ultimately led to his resignation.
In 2008, as a judge on the DC Circuit, Kavanaugh published another
article suggesting policies to improve the functioning of the Federal
Government, which reiterated his support for a law to defer all civil
and criminal cases against the President while the President holds
office.
To be clear, lawyers and legal academics have debated these issues of
Presidential power and accountability from the founding of the
Republic. This debate is particularly relevant in light of how easily a
governing majority of the President's party can crush congressional
efforts to investigate wrongdoings by the President and his
administration. Judge Kavanaugh has every right to publish his thoughts
for legal academia, but he cannot have it both ways. He cannot spend 20
years arguing that the Constitution forecloses

[[Page S6665]]

criminal investigations of a sitting President and claim now that he
approaches the issue with an open mind.
We may soon need clear answers from the Court about whether a
President can pardon himself and whether he can be subpoenaed,
indicted, or otherwise held to account for wrongdoing. If such a case
were to rise to the Supreme Court, it would be gravely damaging to the
Court as an institution if the American people were to believe that the
President had already secured the votes he needed to win because of his
judicial appointments.
It is also clear that Judge Kavanaugh comes to this nomination with
his mind made up to deliver other important victories for the President
and powerful corporate interests at the expense of Federal agency
autonomy and independence.
Judge Kavanaugh spoke 2 years ago on a panel before a conservative
special interest group where he was asked if he could think of a case
that deserves to be overturned. After some hesitation, he answered that
he would ``put the final nail in the coffin'' of Morrison v. Olson,
which upheld the constitutionality of an independent counsel who could
be fired only ``for cause'' by the President.
This deserves consideration. When given the chance to name any case
he would overturn, Judge Kavanaugh did not think to name any of the
most egregious cases from our early history as a nation, such as the
now-overturned Korematsu decision, which upheld Japanese internment, or
Buck v. Bell, which upheld compulsory sterilization of the
intellectually disabled. Instead, Judge Kavanaugh made it clear that he
would strip Congress of its constitutional authority to protect
apolitical public officials, like Special Counsel Mueller, from
arbitrary interference and firing by the President.
Just this year, Judge Kavanaugh showed that he was serious. In PHH
Corporation v. Consumer Financial Protection Bureau, the full DC
Circuit upheld the constitutionality of the statute creating the CFPB
and providing that its independent Director could be removed by the
President only for cause.
In his scathing dissent, Judge Kavanaugh quoted at length from
Justice Scalia's dissent in Morrison v. Olson and made it clear that he
would have placed the CFPB Director under the thumb of the President. I
believe it is safe to assume he would have gone even further in
undermining the consumer agency's independence if he had the power to
overturn Morrison altogether.
This is not the only area where a Justice Kavanaugh would deliver
long-sought-after victories for conservative operatives and special
interests. He has also made clear that he would undercut or even
overturn the law of Chevron deference. As this body discussed at length
in debate over Justice Gorsuch's nomination, the Chevron case stands
for the proposition that when someone sues a Federal agency and a
reasonable person could read the statute at issue in more than one way,
the Court should defer to the agency's reasonable interpretation of the
law that the agency is charged with enforcing. Put simply, Chevron
prevents big businesses that are trying to escape regulation from
pouring millions into lawsuits to second-guess and slow down every
piece of the rulemaking process that they don't like. Even Justice
Scalia defended Chevron as a reasonable check on judicial activism. But
like Judge Gorsuch, Judge Kavanaugh has made it clear in his academic
writings that he would overturn Chevron as we know it and
systematically tip the scales in favor of well-funded challengers of
regulation.
In my view, such a major change in the law would put our Nation on a
path back to the bad old days when companies could pollute the
environment, scam their customers, and discriminate against their
employees as long as they could pay enough lawyers to get the right
judge when the Federal agency sues. This would bring us one step closer
to the ``deconstruction of the administrative state'' that the Trump
administration envisions and could severely obstruct future
administrations in their efforts to protect consumers, the environment,
and those who need a helping hand against the very powerful.
I would like to take a minute to return to the concept of judicial
discretion. As I discussed, I have evaluated every nominee for the
Supreme Court during my time in this body based on whether I believed
the nominee would have an open mind to be able to use his or her
discretion to promote equal justice under the law, and to safeguard the
powerless against the powerful. Upon review of Justice Kavanaugh's
opinions, I do not believe he would. He has routinely sided with
employers and big business against workers, consumers, and those
seeking to hold powerful interests to account.
Two of his notable opinions illustrate the contrast between his
treatment of interests he favors and those he does not.
The case of SeaWorld of Florida v. Perez concerned a tragic incident
at the theme park in which a killer whale grabbed its trainer, pulling
her into the water and killing her. This was not the first trainer this
whale had killed in this way. The Department of Labor sanctioned
SeaWorld upon concluding that the company knew about the danger this
whale posed to trainers and failed to take reasonable steps to lessen
the risk. A Federal district court affirmed this conclusion, as well as
the District of Columbia Circuit.
Judge Kavanaugh dissented. He argued that it was inappropriately
``paternalistic'' for the Federal Government to regulate matters of
workplace safety for entertaining displays such as killer whale
exhibitions. To him, the free market, rather than potentially
lifesaving workplace safety regulations and standards, should decide
how dangerous is too dangerous for workers.
Compare this narrow view of a worker's right to a safe workplace with
Judge Kavanaugh's broad view of an employer's religious right to opt
out of regulations.
The case of Priests for Live v. HHS concerned an attempt to broaden
the Supreme Court's holding in the Hobby Lobby case. In Hobby Lobby, a
5-to-4 majority of the Supreme Court held that a closely held, for-
profit corporation could refuse to comply with the Affordable Care
Act's mandate that employers provide health coverage, including
contraceptives, on grounds that doing so would conflict with the
corporation's purported religious rights under the Religious Freedom
Restoration Act, or RFRA.
In Priests for Life, a religious nonprofit corporation similarly
objected to providing contraceptives to its employees on religious
grounds but also objected to an accommodation provided under Affordable
Care Act regulations specifically for religious nonprofits. Under the
accommodation, the organization could file a form that lodged a faith-
based objection to contraceptive coverage, thereby permitting its
employees to access coverage through alternative means, and not through
the company directly. Priests for Life sued to invalidate even this
alternative, claiming that filing the faith-based objection was a
religious burden because it caused its employees to receive
contraceptive coverage. The DC Circuit decided against the organization
because the organization was wrong, strictly as a matter of law, that
the filing of the form caused a change in the employees' access to
coverage.
Judge Kavanaugh dissented, arguing that it should not matter whether
a nonprofit's religious objections were strictly correct as a matter of
law in order for the objection to excuse it from complying with the
law. If the Supreme Court were to adopt this view, it would open the
door to dangerous possibilities. In addition to nonprofits, for-profit
corporations like Hobby Lobby and others could use religious objections
to excuse themselves from an untold number of Federal laws, ignoring,
in the process, the religious and practical needs of the employees--the
men and women of conscience who work there and the consumers who would
suffer the consequences.
Contrasting these two cases--one showing Kavanaugh's narrow view of
an employee's right to a safe workplace, the other demonstrating his
troublingly broad view of an employer's right to opt out of following
the law--it became clear to me that Judge Kavanaugh would use his
discretion as a Supreme Court Justice to expand the rights of the
powerful at the expense of everyone else.
Supreme Court Justices hold extraordinary positions of authority in
our

[[Page S6666]]

constitutional system because they are the only ones with the power to
decide that the governing majority--as well as prior Justices on the
Court--got it wrong. The Constitution guarantees every American certain
rights that are beyond the reach of the President or a simple majority
of Congress to change because the popular majority cannot always be
trusted to protect the interests of the minority, particularly when
that minority includes the most powerless, alienated, and derided among
us.
The Supreme Court's work is not automatic. It is not an assembly
line. The men and women who sit on the Court must use their values and
experience in order to reach the conclusions that determine how the
Constitution applies to our daily lives. I read Judge Kavanaugh's legal
record to show that he would advance a dangerous partisan agenda from
the bench. Some may disagree with that conclusion, but the fact of the
matter is that the majority is advancing Judge Kavanaugh's nomination
in the absence of critical facts that go directly to his character and
values.
A full and fair investigation--one without predetermined limits--
could clear Justice Kavanaugh's name or it could cause him further
trouble. But if the majority proceeds now, and he is confirmed, the
shadow of doubt will always linger over his position, over the Court,
and over the U.S. Senate. Americans will wonder why this nomination was
rushed, and the obvious conclusion will be that it served the interests
of partisan politics. Rightly or wrongly, that impression will further
harden the cynicism and tribalism of those who are inclined to believe
the system is rigged. That doubt in the fundamental fairness and
integrity of our government is contagious, and our whole Nation suffers
as it spreads. I believe we should stop this and show the American
people that facts matter and that character matters.
Before I yield the floor, I would like to say one more thing to my
colleagues. This process, and the majority's elimination of the 60-vote
threshold for the Supreme Court to confirm Justice Gorsuch last year,
is now the precedent for future Supreme Court nominations. Democratic
Members should expect nothing more from the Republican majority. Every
Senator should think long and hard if they are prepared for what will
come next as a result of this dissolution of the Senate rules that
historically preserved the institutions of the Senate as well as the
Court.
The supermajority requirement for the confirmation of a Supreme Court
Justice was a vital backstop against the kinds of displays we have
witnessed in the past few weeks. That is why Democrats kept the 60-vote
requirement in place when they were forced by a Republican blockade of
lower court judges to fill a whole host of judicial vacancies with
nominees who had cleared committee for district and circuit courts.
Now, with a simple majority threshold, any party in power can pack the
Supreme Court on party-line votes with nominees like Judge Kavanaugh,
who otherwise could never rise to the highest Court of the land.
I would also note that there is no longer any obligation for a
nominee to disclose all of his or her records of prior service, nor is
there a need to hold fair or impartial hearings. FBI background checks
need not be anything more than a mere formality, and nominees have a
free hand to appear in campaign-style commercials, disrespect the
Senate, and disregard traditions of decorum, so long as they put on a
show that plays well with the President and the majority. After all,
there is no longer any need for bipartisan consensus for a Justice of
the Supreme Court.
I have served in this body for over 20 years. I have not been here
for all of the so-called judicial wars, supposedly beginning with the
nomination of Judge Bork, who, I will remind everyone, was defeated on
a strong bipartisan vote, but I have been here for enough of the
deterioration of this process to know there is blame on both sides.
Democrats in this body have been aggressive when they were in power,
but I would also add that scholarly research of many has documented
that Republicans always found another way to escalate things each more,
resulting in the position in which we now find ourselves.
Without some major change on the part of the majority, I hope there
is no illusion among my colleagues that what we have endured over the
last few weeks is anything but the beginning of what is to come. I
stand ready--and I think many of my colleagues on the other side stand
ready--to search for a bipartisan solution and return to a path in
which all of us--at least the vast majority of the Senate--have
overwhelming confidence in the ability and the dedication of a nominee
to the Supreme Court under the Constitution of the United States.
With that, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Washington.
Mrs. MURRAY. Madam President, I come to the floor to speak in
opposition to the nomination of Judge Kavanaugh to the Supreme Court.
I want to make a few quick points as we conclude this debate today,
and then I want to speak to the people watching who may not believe
what the Senate could be headed toward today--who are shocked and
angry, frustrated and hurt.
First and foremost, I believe Dr. Ford. I believe her when she shared
her experience of being assaulted by Judge Kavanaugh. I believe her
because of what she said, and she remembered with 100 percent
certainty.
I believe her despite what some Republicans are trying to use to tear
her down because I know trauma experts tell us survivors may not
remember every single detail of these events.
I believe Republican leaders and President Trump did everything they
could to hide the facts and rush this through because they were afraid
of what a full investigation would show, and I believe it is simply
wrong to rush to a finish on this confirmation based on that alone.
I also believe that what we saw of Judge Kavanaugh's temperament in
the hearing last week--his bitter partisanship, his rage, his
disrespect--was absolutely disqualifying as well and will undermine the
Supreme Court and erode trust in the decisions they make.
I believe the lack of credibility and honesty he demonstrated in his
hearings, which I and my colleagues have spoken about at great length,
is absolutely disqualifying as well, and this isn't just me saying
this. We are hearing an unprecedented outcry on this particular point
from lawyers and judges and former clerks and the religious community,
and even Supreme Court Justice Stevens. Even setting aside those
issues, before Dr. Ford's allegations came out and before we saw more
of Judge Kavanaugh in those hearings, I opposed his nomination because
it was so clear he was picked by President Trump for a few key reasons.
Specifically, he would overturn Roe v. Wade and gut women's
healthcare; he would gut healthcare reform and end protections for
patients with preexisting conditions; and he would protect President
Trump with his disturbingly expansive view on Presidential power, which
is particularly dangerous when we have a President under investigation
with members of his campaign and administration going to jail and
facing indictments.
That is not all we know about him, but we know those things, and to
me that was enough to make my decision. So I do oppose Judge Kavanaugh,
and I hope we can do the right thing in the Senate today.
I want to spend the rest of my few minutes this morning making a
different point and not just to my colleagues but to the people who are
watching from home and across the country because I am very concerned
about the message Republican leaders are sending today to women and
girls and survivors--the message they are delivering on the Senate
floor, at rallies, through the press, and directly to the people.
To Dr. Ford and Ms. Ramirez, and so many other women, girls and
survivors, these Republicans are saying your voices don't matter. Your
experiences, your trauma, your pain, your heartache, your anger--none
of that matters.
Their message is: We don't have to listen. We don't have to care. Sit
down. Be quiet. They are sending the message that if you are a woman
who was attacked, if you are a survivor, then your experience is just
one more ``hiccup'' to ``plow right through'' on the path to get what
they want; that if you come forward with your experience, you will

[[Page S6667]]

be told you are just ``mixed up,'' wrong, lying, or worse.
They are sending a message that you will be asked why you didn't come
forward sooner, what you wore, how much you had to drink, what
medication you were taking, if you had any history of mental issues,
how you got to the party, how you got home; that you will be mocked and
undermined, told to ``grow up'' and waved away, and that is just if
they can't find a way to sweep you aside and ignore you altogether.
They are sending a message that when it comes to a man who has gone
to prestigious schools, who has all the connections, who has spent his
entire life setting himself up for this moment, it is his experience
that matters, his pain that matters, his future that matters, not
yours.
They aren't just sending a message to women and girls and survivors,
they are sending a message to men and boys, too, and that is what
frightens me just as much. They are sending a message to them that if
they attack women, if they hurt people, they are going to be fine; that
they may hear that this kind of behavior is wrong, that it is not
acceptable, but don't worry, nothing will actually happen to them if
they do it.
They can grab women without their consent and brag about it, they can
sexually assault women and laugh about it, and they are probably going
to even be fine. They can even grow up to be President of the United
States or a Justice on the Supreme Court.
That is absolutely wrong.
So I want to send a very different message to women, girls, and
survivors: Your voices do matter. Your experiences do matter. There are
a whole lot of people who are listening to you, who do hear you, who do
believe you. Please, please do not give up and do not stay quiet
because no matter what happens today, however this vote goes, your
voices are making a difference, maybe not to those Republicans mocking
Dr. Ford--they may not want to hear what you have to say--and maybe not
to President Trump, but with every story that comes out, every new
voice that breaks the silence, we make progress. Every father and
mother who learns what happened to their daughter or son all of those
years ago that they had never shared before, every son and daughter who
hears from their mom and dad about abuse or attacks they faced and
never talked about, everyone who hears from a friend, who listens to a
coworker, it does make a difference.
We have seen that since the #MeToo movement started more and more.
More and more over these past few weeks, stories came out helping
people understand how pervasive this is, how this kind of violence is
something women have been putting up with for ages, in silence,
unheard, seemingly inevitable, a wall placed in front of every girl and
woman in this country and how, as more and more people have so bravely
spoken up, cracks have begun to appear in that wall.
There are some cracks in how people see the world, people who may
have never understood before, who may have never seen the perspective
they are learning about more and more now, some cracks in how companies
and institutions need to respond, which may have never felt that
pressure before. There are some cracks in how men and boys are acting,
hearing more and more that this is not OK. It cannot be accepted. It
will not be accepted.
Cracks, cracks, and cracks, but clearly today we see the wall still
stands.
If Judge Kavanaugh is confirmed, despite all of the outcry and all of
the work done, there will be a lot of people who are angry and hurt. I
will be one of them. There will be frustration. There will be tears. I
will be joining in them. But there will also be a sense that nothing we
can do matters; that if someone like Judge Kavanaugh can get a seat on
the Supreme Court, we should just give up; that we can't make a
difference, we can't matter. That, I will not be a part of.
Here is the message I want to send today: Change is not easy. It
never is. We cannot give up the fight, and we cannot be discouraged. My
vision, my fight, my passion is to live in a country where my
granddaughters can walk down the street, go to a party, live their
lives, not live in fear but be treated with respect.
I want to live in a country where my granddaughters can go into a job
interview and be judged based on what they can do, not on how they
look. I want to live in a country where you can succeed no matter where
you were born, what you looked like, or whom you love; if you work hard
and treat others right, where you don't have to go to prestigious
schools and know powerful people and make the best political
connections and go to the right parties. I want to live in a country
where if you do all of those things and know all of those people but
hurt others and treat people with disrespect, you will pay the price,
you will face the consequences.
Clearly, we are not there yet, but I do believe we are making
progress. We may not feel it every day, and today is a day when it is
hard, but I believe, and my message to everyone watching right now is,
don't give up; don't give in; don't think your voice doesn't matter.
When the Senate failed Anita Hill and confirmed Justice Thomas in
1981, I got mad. I decided to run for the Senate. I wouldn't let anyone
tell me I had no shot, and I won--and I see that story repeated over
and over. People get angry. They start talking about it. They organize
it, and sometimes they face their past, but they make a difference.
They put more cracks into that wall, but when I hear people give up
hope, when they tell me they are ending their fight because they think
what they do doesn't matter, I know I am hearing from someone who isn't
going to make a difference.
I think of a line I remind myself of all the time: If someone tells
you, you can't make a difference, it is usually because they are afraid
that you will. They are afraid that you will because it is true. They
are petrified because they do know your voice matters--whatever you may
think, whatever they may say.
So whatever happens today, I am going to get up tomorrow, and I am
going to keep fighting. I am going to keep fighting for the kind of
country I want to live in, for the country I want for my
granddaughters, for all of our granddaughters and all of our
grandsons--a country where someone like Dr. Ford is believed, where she
is not attacked; where someone like Judge Kavanaugh doesn't get rushed
to the highest Court in the land. I really hope everyone who stood up
and spoke out, who is motivated by Dr. Ford and so many others, I hope
you are all with me today, tomorrow, and for the fight ahead.
So I urge my colleagues to stand with us, to vote no today, and to
keep working with us tomorrow.
Thank you.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Michigan
Mr. PETERS. Madam President, our Nation has seen some deeply
concerning trends in recent decades--increased polarization, flat wages
for workers, and a growing tribal mindset that makes it increasingly
difficult for people to trust each other and our public institutions.
We are also seeing a partisan divide that is growing stronger and wider
by the day.
For example, 60 years ago, about 4 percent of Americans said that
they would be seriously disappointed if their son or daughter married
someone from the opposite political party. Today, it is almost half.
We are also seeing a growing economic divide. Fifty years ago, 9 out
of 10 30-year-olds in America were better off than their parents at the
same age. In 2010, only half were. It feels like the bonds that make us
a cohesive society are fraying and that life in the United States is
growing more unfair for so many Americans. Bringing our country back
together and strengthening our bonds with each other will not be an
easy task, but, without question, the Supreme Court has an unparalleled
ability either to move our society forward or to pull us further apart.
Unanimous opinions by the Supreme Court to strike down segregation in
public schools, to affirm the right of criminal defendants to an
attorney, and to rein in the use of executive privilege by President
Nixon show the ability of ideologically diverse judges to agree on what
is fair and what is right, but the Supreme Court as an institution is
far, far from infallible.
The same institution that just 3 years ago made marriage equality the
law of the land also upheld the internment of American citizens of
Japanese dissent while our parents fought to liberate prisoners held in
German concentration camps across the Atlantic

[[Page S6668]]

Ocean. The same institution that gave American women the right to make
decisions about their own reproductive health in Roe v. Wade denied
citizenship to African American slaves in the shameful Dred Scott
decision.
Some of my colleagues have said they have confidence that Judge
Kavanaugh believes in Roe v. Wade and that it is the settled law. I
hope they are right, but I seriously doubt it. I think that, if
confirmed, Judge Kavanaugh will spearhead the continued erosion of
rights for American women, and if given the chance, he will vote to
overturn this settled precedent.
Lots of talk in Washington about the Supreme Court centers on
precedent, power, or procedure, but I would argue that voting for a
Supreme Court nominee is fundamentally about people. In making a
decision on how I will vote on a Supreme Court nominee, I ask two
questions: First, how will the nominee serve the people of Michigan?
Second, how will the nominee serve the Nation as a whole?
Now, more than ever, I think we need our Supreme Court not to be just
fair. We also need Americans to truly believe that the Justices that
make up the Supreme Court are fair and capable of dispassionate
deliberation. No human being, of course, can be entirely impartial or
without bias, but we need Supreme Court Justices who are able to
understand their biases and set them aside for the good of the country.
What we need is fairness. What we need is trust.
Our fraying social fabric can only be rebuilt by trust--trust in our
institutions, trust in each other, and trust that our courts will give
every American a fair chance in an era where corporate profits are
ballooning to record levels. But 40 percent of Americans don't have the
savings to cover a $400 emergency expense. A breakdown of trust
undermines our democracy. The farther and faster we retreat to our
partisan tribal corners, the harder it will be to ever meet again in
the middle.
While Americans expect partisanship from their elected officials,
they expect better from our judges. Our Founders created a coequal
branch of government dedicated to fairness, and that was the Supreme
Court, but, unfortunately, when I examine the record of Judge
Kavanaugh, I do not see an open mind. I do not see fairness. I see a
partisan ideologue who will do judicial backflips to rule in favor of
large corporations, the powerful, and the elite.
When the Supreme Court conducts its duty to advise and consent on
Supreme Court nominees, we often talk about methods of constitutional
interpretation. Some judges are textualists. Some are originalists.
Some are pragmatists. I believe Judge Kavanaugh is a corporatist, pure
and simple. He starts with the outcome that corporate executives would
want, and then he works backward. I believe this is the unifying theme
of his rulings over the past decade.
Let's take a moment to review his record.
Judge Kavanaugh sided with big polluters when he wrote that the
Environmental Protection Agency could not enforce their ``good
neighbor'' rule. This commonsense rule simply requires States whose air
pollution blows across their State's lines to bear some of the
responsibility for those downwind emissions. The good neighbor rule is
one of the best ways to crack down on sulfur dioxide, a noxious
pollutant that has created a public health crisis in Detroit, with
childhood asthma rates almost 40 percent above the national average.
More sulfur dioxide in the air means more children in hospitals and
fewer children in the classroom.
Judge Kavanaugh substituted his own values and judgment for the
decisions of Congress and the EPA, but, fortunately, even conservative
Justices on the Supreme Court voted to overrule him and allowed the
good neighbor rule to stay in place.
Judge Kavanaugh apparently does not believe in good neighbors, and he
also does not believe in good bosses. He has consistently ruled against
workers and their interests every chance that he gets.
He wrote a dissent saying that companies can simply walk away from
collective bargaining agreements made with their workers by just
creating a spin-off, a nonunion company. He ruled that companies can
call the police to prevent workers from exercising their right to
peacefully picket. For Judge Kavanaugh, the First Amendment right to
speech and assembly comes second to a corporation's bottom line. This
is the judicial philosophy that the Republican majority is just hours
away from elevating to the highest Court in the land.
Based on a review of Judge Kavanaugh's rulings, it will be clear that
if something is good for consumers, he will find a way to oppose it.
For example, Judge Kavanaugh sided with large telecom corporations
over Michigan families, startups, and small businesses when he wrote a
dissent to gut net neutrality protections. Judge Kavanaugh sided with
payday lenders, financial fraudsters, and global megabanks when he
ruled that the Consumer Financial Protection Bureau was
unconstitutional.
Not only does Judge Kavanaugh always rule directly in favor of the
largest corporations and powerful special interests, but his rulings
show that he wants to further tilt our campaign finance system in their
favor. He has spoken out and ruled in favor of unlimited political
spending in Federal elections.
In 2011, Judge Kavanaugh authored an opinion that would allow foreign
nationals--not Americans, but foreign nationals--to spend unlimited,
yes, unlimited money on issue ads in American elections. If you like
dark money undermining our free and fair elections, well, Judge
Kavanaugh is definitely your guy. I think Judge Kavanaugh genuinely
believes that money is speech and that corporations are people. To him,
Americans are only an afterthought.
I know many Americans are wondering whether Judge Kavanaugh will look
out for their best interests if confirmed to the Supreme Court. I hear
it all the time as I travel across Michigan.
To my fellow Americans, I would say this. If you enjoy breathing
clean air, if you have a boss, if you care about not being defrauded by
financial bad actors, or if you care about a woman's right to choose,
Judge Kavanaugh will not be providing the fairness you seek.
Like many Americans, I followed closely the testimonies of Dr. Ford
and Judge Kavanaugh before the Senate Judiciary Committee. As I watched
Dr. Ford, I didn't see a partisan ideologue motivated by politics. What
I saw was a woman speaking with credibility, with earnestness, and
incredible bravery.
As I watched Judge Kavanaugh testify before that same Judiciary
Committee, I saw something very different. I didn't see the temperance
and humility we expect from a Supreme Court justice. I saw rage and I
saw entitlement. I didn't see a thoughtful legal mind bound by
precedent or tradition. I saw a partisan political operative cloaked in
judicial robes bestowed upon him last decade by a Republican majority
flexing their political muscle. I didn't see an umpire who wants to
call balls and strikes. I saw a man who believes he is the league's
commissioner, a man who thinks he should have the power to rewrite the
rules of the game to help his powerful friends. I didn't see a man
committed to fairness and building trust. I saw a man committed to
consolidating power and scoring political points. I saw a man whose
fluid relationship with the truth is beneath the U.S. Senate and
beneath the U.S. Supreme Court.
Today, more than ever, America needs trust and we need fairness.
Judge Kavanaugh's confirmation will provide only more division in our
country and cast a cloud over the decisions of the Court for years to
come.
I urge my colleagues to oppose Judge Kavanaugh's confirmation and to
start over with a nominee worthy of our Supreme Court.
I yield the floor.
I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Ms. BALDWIN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Ms. BALDWIN. Madam President, there is one standard we should all
apply to any nominee for the U.S. Supreme Court--honesty. While some

[[Page S6669]]

have chosen not to apply that standard to Judge Kavanaugh, I must. At
the very least, we should expect a nominee for our highest Court to be
honest.
I do not believe Judge Kavanaugh has met this standard. In fact,
there is a long record of this nominee not being truthful when he came
before the Senate Judiciary Committee. I don't believe he was truthful
in his 2006 testimony before the Senate, just as I don't believe he was
honest in 2018.
Last week, I joined millions of Americans in watching Dr. Christine
Blasey Ford's powerful testimony before the Senate Judiciary Committee,
in which she credibly presented serious and deeply disturbing
allegations of sexual assault. I have deep respect for the strength and
courage she has shown in coming forward and putting her own safety and
that of her family on the line to do the right thing. To me, Dr. Blasey
Ford was honest, and I believe her.
I supported the call for the White House to reopen the FBI background
investigation of Judge Kavanaugh. Dr. Blasey Ford did too. However, in
his testimony to the Senate Judiciary Committee, Judge Kavanaugh
repeatedly refused to support such an investigation by the FBI.
It is clear to me that the White House and the Senate Republicans
severely limited what could have been a full and independent review by
the FBI of the credible allegations against the Supreme Court nominee.
The fact is, White House and Senate Republicans would not allow the FBI
to interview Dr. Blasey Ford, Judge Kavanaugh, and a number of
witnesses who came forward publicly. That is simply wrong.
It is also wrong to be moving forward on a Supreme Court nominee who
so clearly lacks the honesty and judicial temperament we would expect
of someone serving on our Nation's highest Court.
Let us not ignore what we all witnessed at last week's Judiciary
Committee hearing. We saw a stark contrast between two witnesses. Dr.
Ford was honest, credible, respectful, and thoughtful. On the other
hand, Judge Kavanaugh was not honest about a number of things he was
questioned about, and he did not provide truthful testimony. What he
did provide were aggressively angry, political attacks that prove he
lacks the judicial temperament to serve on America's highest Court.
Even before Judge Kavanaugh's recent hearing, I did not believe he
would be an independent judge.
Powerful special interests in Washington handpicked him and have used
their massive, dark money resources to push his nomination forward. I
can only conclude that Judge Kavanaugh would work for them and not the
people of Wisconsin or our Nation. It is no wonder Judge Kavanaugh is
the choice of these powerful, wealthy, corporate special interests.
They want to ensure that they maintain the majority on the Supreme
Court that will rule on their issues and in their favor.
As my colleague and Judiciary Committee member Senator Whitehouse has
described in great detail, since 2006, the five conservative Justices
have joined together 73 times as a bare majority in 5-to-4 rulings in
favor of big special interests. These decisions have turned back
progress on voting rights, environmental protection, and have allowed
corporations to discriminate against workers.
Judge Kavanaugh's record shows he will advance this troubling trend
when the people of Wisconsin need a fair, impartial, and independent
Supreme Court Justice who will stand up for them, not just for big,
powerful special interests.
At a time when so many in Washington are working to overturn the law
of the land that helps provide affordable healthcare to 133 million
Americans with preexisting conditions, including more than 2 million
Wisconsinites, we cannot afford a nominee who would serve as the
deciding vote to take us back to the days when powerful insurance
companies wrote the rules.
The President vowed to appoint judges to the Supreme Court who would
overturn the law of the land, Roe v. Wade, and I take him at his word.
Judge Kavanaugh is his choice for a lifetime appointment that would
turn back the clock on a woman's constitutional right and freedom to
make her own healthcare choices, including access to birth control.
I also have serious concerns about Judge Kavanaugh's belief that a
President should be protected from investigations and subpoenas and
indictments. We have an ongoing national security investigation by the
special counsel looking into Russia's attack on our democracy, criminal
conspiracy, and potential obstruction of justice.
Particularly after his highly partisan testimony before the Judiciary
Committee, I do not trust Judge Kavanaugh to provide the independence
we need on our Supreme Court at this time. When Judge Kavanaugh was
nominated, I reviewed his record and opposed his nomination because the
stakes are too high for the American people. They do not want a Supreme
Court to advance a political agenda to overturn the law of the land on
healthcare for people with preexisting conditions, women's reproductive
health, and the constitutional rights and freedoms of all Americans.
I truly wish I had been granted the opportunity to discuss these
important issues with Judge Kavanaugh before this vote, but after seven
requests to the White House for a meeting with this nominee, they did
not grant me the opportunity to talk to Judge Kavanaugh.
The people of Wisconsin need a fair, impartial, and independent
Supreme Court Justice. Based on everything we know, I do not have the
confidence Judge Kavanaugh would be that Justice, and I will vote no on
his confirmation to the U.S. Supreme Court.
I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mrs. FISCHER. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mrs. FISCHER. Madam President, I rise today in support of the
nomination of Judge Brett Kavanaugh to be an Associate Justice on the
U.S. Supreme Court.
In the Senate, the Constitution grants us a solemn responsibility to
provide advice and consent to the President's nominees. I was proud to
be at the White House as President Trump announced the nomination of
this exceptionally qualified judge.
After evaluating Judge Kavanaugh's legal record and background, I
personally met with him in my office. During our meeting we covered
many topics, including judicial activism. Judge Kavanaugh stated to me
that judicial activism is the substitution of policy preferences for
stated law. He committed to me that he would never add nor subtract
from our country's Constitution, but that he would apply it fairly to
all. We had a wide ranging, hour-long discussion where I shared with
him the qualities I want to see in a Supreme Court Justice and
questioned his record and judicial philosophies.
Judges are not legislators or activists. They are interpreters of the
law. They must have integrity and understand that all Americans must be
treated equally under the law. Judges must uphold high standards with a
fair-minded approach, tremendous intellectual capacity, and devotion to
the public good. I am confident that Judge Kavanaugh possesses all of
these qualities.
Moreover, I was impressed by his commitment to the rule of law. He
understands the proper role of a judge as an interpreter, not the
writer, of the law. He also understands that unlike Members of Congress
or the executive branch, which are accountable to the people, the
judiciary must act independently and follow the law wherever it takes
them. This was something we heard repeatedly from him in his lengthy
confirmation hearing before the Senate Judiciary Committee.
Judge Kavanaugh demonstrated his strong commitment to judicial
independence. During the hearing, he repeatedly affirmed:

What makes a good judge is independence, not being swayed
by political or public pressure.
That takes some backbone, it takes some judicial fortitude.
The great moments in American judicial history, the judges
had backbone and independence.

He continued:

Judges make decisions based on law, not on policy, not
based on political pressure, not based on the identity of the
parties.

[[Page S6670]]

No matter who you are, no matter where you come from, no
matter how rich you are, how poor you are, no matter your
race, your gender, no matter your station in life, no matter
your position in government, it is all equal justice under
law.

I believe his words and judicial philosophy are what every Member of
the Senate, Republican or Democrat, should require from their nominee.
I also admired Judge Kavanaugh's appreciation of the Supreme Court's
position in setting and interpreting precedent. He has even written a
book on it, and I am comfortable with his understanding and
appreciation for the role of precedent in the judicial process.
For 12 years Judge Kavanaugh has served on the DC Circuit Court of
Appeals, our Nation's second most influential court. His record is
remarkable. With nearly 200 controlling opinions, he has proven to be
one of the most thoughtful, preeminent judges in our Nation. In 13
cases the Supreme Court adopted Judge Kavanaugh's reasoning in its
decisions. This is a key point, as it was not just 13 decisions in
agreement. It was Judge Kavanaugh's actual language and the thought
process in his decision which were used in the opinions of our Nation's
highest Court. The logic behind Judge Kavanaugh's opinions are already
woven into Supreme Court precedent.
Regarding privacy issues, in United States v. Jones, Judge Kavanaugh
dissented when the court denied the government's request for a
rehearing. He argued that the case deserved to be heard by the full
court and indicated support for the narrow property-based Fourth
Amendment argument made by the plaintiff.
When considering whether a warrant was required in order to install a
GPS tracker in the suspect's car, he said the suspect's property rights
should have been taken into account. In Justice Scalia's majority
opinion, he agreed with Kavanaugh's property-based approach.
When it comes to administrative law, he has taken a consistent and
balanced approach to assess congressional intent and applying
exceptions to Chevron deference, ensuring Federal agencies are
executing the laws crafted by Congress, not creating their own versions
of the law. According to his own words, Judge Kavanaugh looks to the
``settled, bedrock principles of constitutional law.''
In protecting Congress, he has found that ``the President and federal
agencies may not ignore statutory mandates or prohibitions merely
because of policy disagreement with Congress.''
Judge Kavanaugh also has a strong comprehension of freedom of speech
under the First Amendment. He demonstrated this in his decision in the
case of Boardley v. U.S. Department of the Interior. This particular
case dealt with a Christian man, Michael Boardley, who was stopped by
the National Park Service from handing out pamphlets on his faith at
Mount Rushmore. Judge Kavanaugh joined the majority in ruling against
the Park Service and their exceedingly broad regulation of free speech.
In authoring hundreds of opinions, while joining hundreds of others,
Judge Kavanaugh has distinguished himself as a thought leader on the
Federal bench.
Over the past few weeks, I believe the Senate confirmation process
has become a shameful spectacle and a disservice to everyone involved.
I appreciate Professor Ford's sincere testimony. I believe she has
experienced a traumatic event that no woman should have to endure.
There is no evidence, though, that Judge Kavanaugh was the perpetrator.
A seventh FBI background investigation of Judge Kavanaugh failed to
corroborate Professor Ford's account. Moreover, there are a number of
key facts missing from Professor Ford's story.
My job as a Senator is to assess the facts and make a judgment. I
continue to support Judge Kavanaugh and believe he will serve our
Nation with integrity and devotion to the rule of law. I am confident
that Judge Kavanaugh will be an outstanding Supreme Court Justice. I
look forward to voting in favor of his confirmation. He will serve the
American people with distinction.
Thank you, Madam President.
I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. MARKEY. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. MARKEY. Madam President, I ask unanimous consent that three
letters and a news article related to allegations against Judge
Kavanaugh be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Kaplan Hecker & Fink LLP,

Re Nomination of Judge Brett Kavanaugh.

New York, NY, September 26, 2018.
Hon. Dianne Feinstein,
Member, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Hon. Charles E. Grassley,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.

Dear Senators Feinstein and Grassley: We have been retained
to act as counsel for Elizabeth Rasor. As you are no doubt
aware, Ms. Rasor was quoted in an article by Ronan Farrow and
Jane Mayer in the New Yorker published on September 23rd
regarding a conversation she had with Mark Judge potentially
relevant to the nomination of Judge Brett Kavanaugh to the
United States Supreme Court.
Ms. Rasor's recollection of what occurred is stated
accurately in the New Yorker piece and she would welcome the
opportunity to share this information with agents of the FBI
as part of a re-opened background investigation. In the event
that that does not occur, although Ms. Rasor does not welcome
the unwanted attention that would inevitably result if she
were to testify before the Senate Judiciary Committee, she
believes that it is her duty as a citizen to tell the truth
about what happened.
Accordingly, please contact me at your earliest possible
convenience to make appropriate arrangements.
Very truly yours,
Roberta Kaplan, Esq.
____

Kaiser Dillon PLLC,

Washington, DC, September 26, 2018.
Hon. Chuck Grassley,
Chairman, Committee on the Judiciary,
U.S. Senate.
Hon. Dianne Feinstein,
Ranking Member, Committee on the Judiciary,
U.S. Senate.
Dear Chairman Grassley and Ranking Member Feinstein: 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 her 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.
That story recounts that the reporter first learned of the
relevant incident from individuals other than Ms. Ramirez.
The reporter then approached Ms. Ramirez, who confirmed and
further described the incident. The reporter proceeded
independently to verify the story with other individuals,
including one who remembered contemporaneously learning of
the incident (including that it involved Mr. Kavanaugh and
Ms. Ramirez), and another who remembered contemporaneously
overhearing a student tearfully recounting what could only
have been the same incident.
Ms. Ramirez has asked that the FBI investigate further. She
has done so both by direct request (through counsel) to the
FBI, and by asking this Committee (again, through counsel) to
involve the FBI. Thus far, however, the Committee has
refused. This is illogical: An FBI investigation would allow
a credible, efficient, and professional development of the
facts--free from partisanship. This not only would best
protect Ms. Ramirez from being dragged into a political fray,
but also would best allow the Committee to learn those facts.
and thereby proceed in an informed manner. Ms. Ramirez asks
again: If the Committee cares about the facts with respect to
the incident she has described, it should ask the FBI to
investigate.
Ms. Ramirez is willing to cooperate with the Committee. To
that end, she--through counsel--repeatedly has asked the
Committee to speak with her about a process by which she
fairly can be heard by Committee members. But the majority
staff thus far has refused even to speak with Ms. Ramirez's
counsel; instead, that staff has insisted that Ms. Ramirez
first ``provide her evidence.'' Respectfully, that demand
misunderstands the process. Ms. Ramirez has not conducted an
investigation to gather materials that she now somehow can
present, gift-wrapped, to the Committee. She is not a
litigant, and she is not a partisan. Rather, she simply has
told her story, truthfully and as best she could, to a
reporter who asked. Indeed, the majority's confusion on this
issue underscores the need for an FBI investigation--that is
the organization that credibly could develop the additional
``evidence'' the majority references. What Ms. Ramirez can
do--and all

[[Page S6671]]

that Ms. Ramirez can do--is simply tell what happened to her.
Ms. Ramirez has no agenda. She did not volunteer for this.
But nor has she, or will she, shy away from truthfully
recounting the facts. She asks only to be treated fairly. The
Committee should begin by allowing the FBI to investigate.
Sincerely,
William Pittard.
____

Kaplan Hecker & Fink LLP,

New York, NY, September 27, 2018.
Re Nomination of Judge Brett Kavanaugh.

Hon. Diane Feinstein,
Member, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Hon. Charles E. Grassley,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Senators Feinstein and Grassley: As a follow up to my
letter of yesterday's date, we enclose an affidavit from Ms.
Rasor executed yesterday evening.
Very truly yours,
Roberta A. Kaplan.
____

Affidavit of Elizabeth Rasor

I, Elizabeth Rasor, being duly sworn, hereby depose and
say:
1. I make this affidavit based on my personal knowledge.
2. I have a bachelor's degree in English Literature from
Catholic University and a master's degree in Special
Education from Teacher's College at Columbia University.
3. I first met Mark Judge in or around the fall of 1986
while we were both students at Catholic University.
4. We engaged in a serious, romantic relationship for
approximately two years beginning in 1986 through 1988. We
dated exclusively during much of that time period and
attempted to reunite several times in the months afterwards
until I moved to New York from Washington, D.C. in 1989.
5. While we were dating, I spent time with Mark's friends
from Georgetown Prep and attended a couple of social
gatherings at which they were present.
6. I met Brett Kavanaugh at a couple of social gatherings
on or around 1987.
7. Brett continued to socialize with Mark and their
friends from Georgetown Prep during this time.
8. At the parties that Brett and Mark attended during this
period, there was frequent and wide-spread alcohol
consumption
9. In or around 1988, in the context of a conversation we
had about how we lost our virginities, Mark told me, in a
voice that seemed to convey a degree of shame, about an
incident that had occurred a few years prior, where he and
several other boys from Georgetown Prep took turns having sex
with a woman who was drunk. It was Mark's perception that the
sexual activity was consensual.
10. To the best of my recollection, at the time of the
conversation, I, and I believe Mark, were sober.
11. After this initial conversation. Mark and I never
discussed this again.
12. Mark did not share with me any names of other
individuals involved in this incident, and I do not have any
information to suggest, one way or another, that Brett was
one of them.
13. Mark and I broke up towards the end of 1988.
14. I last spoke with Mark in or around 2013. We met for
lunch at Georgetown University to catch up, and I brought my
son.
I solemnly swear or affirm under the penalties of perjury
that the matters set forth in this Affidavit are true and
correct to the best of my personal knowledge, information,
and belief.
Elizabeth Rasor,
Sag Harbor, New York, September 26, 2018.

Sworn to before me this 26th day of September, 2018
Lindsey Beckelman,
Notary public.
____

[From NBC News, Oct. 5, 2018]

The Battle Over Accusations Goes On as Kavanaugh Nomination Advances

(By Heidi Przybyla)

Washington--As Senate Judiciary Chairman Charles Grassley,
R-Iowa, closed out his executive summary of allegations of
sexual misconduct against Supreme Court nominee Brett
Kavanaugh, his staff called a former roommate of Deborah
Ramirez, the Yale classmate who has accused Kavanaugh of
exposing himself to her.
Jen Klaus, the former roommate, told NBC News that
committee staff members called her at 4:30 p.m. Thursday, put
her on speakerphone and asked about Ramirez's drinking
habits, whether there was a Yale student known for dropping
his pants and the party culture at Yale. She says they
suggested the allegation was a case of mistaken identity.
``It just gave me the impression they were suggesting
perhaps it was (another classmate) who threw his penis in her
face instead of Brett. Why would they be asking me this?''
said Klaus, who now resides in Brookline, Massachusetts.
In a statement to NBC News, the committee's press
secretary, George Hartmann, said that ``no suggestion of
mistaken identity was made. The committee has received
numerous tips and asked Ms. Klaus for information she could
provide one way or the other.''
``To say otherwise would not only be inaccurate, it would
also call into question the motivations of the individual
doing so,'' Hartmann added.
The FBI's supplemental background investigation into
allegations against Kavanaugh included interviews with nine
individuals and the results were sent to the White House and
Senate Thursday morning. Grassley's summary said that
committee staffers talked to 35 individuals.
Kavanaugh has strongly denied the allegations and his
confirmation appears to have the votes to pass on Saturday
after Sens. Susan Collins, R-Maine, and Joe Manchin, D-W.Va.,
said they would support him late Friday afternoon.
Two former Yale classmates say they have made several
attempts to share text messages raising questions about
whether Kavanaugh tried to squash the New Yorker story that
made Ramirez's accusations public--and say the FBI did not
respond to their calls and written submissions to its web
portal.
The text messages involve one potential eyewitness to the
incident and the wife of another potential eyewitness.
The texts are a conversation between Kathy Charlton and a
mutual friend of Kavanaugh's who, NBC has confirmed, was
identified to the FBI by Ramirez as an eyewitness to the
incident. NBC News has received no response to multiple
attempts to reach the alleged eyewitness for comment. The
story detailing Ramirez's accusation was published in The New
Yorker on Sept. 23. Charlton told NBC News that, in a phone
conversation three days earlier, the former classmate told
her Kavanaugh had called him and advised him not to say
anything ``bad'' if the press were to call.
Then on September 21, according to the texts, that same
person sent Charlton a text accusing her of disclosing their
conversation to a reporter. ``Helllllloooo. Don't F******
TELL PEOPLE BRETT GOT IN TOUCH WITH ME!!! I TOLD YOU AT THE
TIME THAT WAS IN CONFIDENCE!!!''

9/21/18, 12:34PM
To: Kathy Charlton
From: [REDACTED]
Did you get to go through the biz plan and see [REDACTED]
notes?
Helllllloooooooo
Don't F[REDACTED] TELL PEOPLE BRETT GOT IN TOUCH WITH ME!!!
I TOLD YOU AT THE TIME THAT WAS IN CONFIDENCE!! AND
[REDACTED] CALLS ME. WTF!

``From the content and all capital letters of the text (the
alleged witness) seemed to feel that there was a great deal
at stake for Brett if Brett's fears of exposure ever became
public,'' Charlton wrote in a statement to the FBI shared
with Grassley's office on Oct. 4.
Charlton is not the only former Yale classmate of
Kavanaugh's to indicate the nominee and his team were active
in reaching out to their social group ahead of publication of
The New Yorker story. NBC News has reported that a memo to
the FBI, drafted by Kerry Berchem, questioned whether
Kavanaugh ``and/or'' his friends ``may have initiated an
anticipatory narrative'' as early as July to ``conceal or
discredit'' Ramirez.
Both women stressed that they don't know the whole story
and are drawing no conclusions but are baffled as to why they
were never interviewed by the FBI or Judiciary staff.
Both say they have made numerous attempts to reach the FBI.
Thursday night, after Grassley pronounced the investigation
complete, Berchem sent her third email to Mike Davis, the
chief counsel for the Senate Judiciary Committee, pleading
for him speak with her. Similar to his responses to previous
emails, Davis noted that her information was forwarded to the
investigative staff. Berchem shared the exchange with NBC
News.
Hartmann, the committee press secretary, said ``it would be
a lie to say committee investigators did not interview Ms.
Berchem. Committee investigators spoke at length with Ms.
Berchem on Oct. 3. Committee investigators also extensively
reviewed information provided by Ms. Berchem.''
Berchem told NBC News that she has had one call with a
committee staff member to whom she gave a brief overview of
her concerns but was not interviewed.
Hartmann also said the committee received correspondence
from Charlton. ``In her letter, Ms. Charlton asked the
committee to review her exchange, which the committee did,
and said the committee should feel free to contact her if
there were any questions,'' Hartmann said. ``After evaluating
the information provided, the committee's professional
investigators did not see a need for a follow-up call.''

THE TEXTS

The efforts by the two women have continued even as
Republicans like Grassley insist that the investigation of
the accusations against Kavanaugh is complete.
Berchem sent to the FBI some of 51 screen shots of text
messages she exchanged with her friend, Karen Yarasavage, the
wife of Kevin Genda, another alum Ramirez identified as an
eyewitness, to explain why Kavanaugh and his friends should
be asked whether they anticipated a story about Ramirez as
early as July.
Ramirez identified to the FBI Dave Todd, Kevin Genda and
Dave White as eyewitnesses who were in the room during the
alleged incident, according to a source familiar with the
investigation.
In July, as the Washington Post quietly researched a story
on a woman accusing

[[Page S6672]]

Kavanaugh of sexual misconduct while they were in high
school, Berchem said she received what she presumed was a
misfired text from Yarasavage.
The text suggests that Kavanaugh's closest Yale friends and
those Ramirez later identified as witnesses were searching
for an old 1997 wedding party photo that includes themselves,
as well as Ramirez and Kavanaugh, all smiling together.
The July 16 text notes that ``Whitey,'' or Dave White, sent
a 1997 wedding party photo to the Washington Post. Berchem is
not friends with White and assumed it was mistakenly sent to
her. The text came 10 days after Dr. Ford sent an anonymous
tip to the Washington Post's confidential tip line, according
to her testimony before the Senate.
``Why was the 1997 photo retrieved and distributed to the
Washington Post at that time? Debbie's allegations against
Brett do not become public until September 23rd,'' writes
Berchem in her memo.
The Post did not publish its piece identifying Dr.
Christine Blasey Ford as the accuser until September.
In July, Yarasavage also began texting about an old
classmate whom neither was or is close to, Rick F. On July
16, Yarasavage texted Berchem noting she found a ``box of
college photos. Rick (F) etc.''
``Neither of us knew him well in college. Does she actually
have photos of him?'' Berchem asked in her memo.
On Sept. 23, the day the New Yorker published Ramirez's
story accusing Kavanaugh of exposing himself, Yarasavage
returned to Rick F.: ``I thought I heard (he) pulled out his
unit once. Could she be so wildly mistaken??''
The subject, Rick, hadn't been at Yale in the 1983-84
school year. ``She concludes by appearing to insinuate that
Ms. Ramirez's memory may have been adversely impacted by
problems with her father,'' writes Berchem.
On the same day, Yarasavage also texted Berchem that she
was being contacted by ``Brett's guy'' and that ``Brett asked
me to go on the record'' regarding the New Yorker piece.
``I believe that these September 23rd texts raise factual
issues, such as the contents of the conversation if it
occurred between Judge Kavanaugh and why (Yarasavage) seemed
to be encouraging a false `mistaken identity' theory
involving someone who wasn't at Yale at the time of the
alleged incident--that might merit the FBI's further
investigation,'' wrote Berchem. NBC News has received no
response to attempts to contact Yarasavage.

Mr. MARKEY. Madam President, I rise to speak in opposition to the
nomination of Judge Brett Kavanaugh to serve as an Associate Justice on
the U.S. Supreme Court.
The vacancy that Judge Kavanaugh seeks to fill is not an ordinary
one. The retirement of Supreme Court Justice Anthony Kennedy created
one of the most consequential vacancies on the High Court that this
country has ever seen. There is a reason why scholars and pundits refer
to the Supreme Court of the last 30 years as the ``Kennedy Court.'' His
influence on so many important cases cannot be overstated.
Throughout his three decades on the Supreme Court, Justice Kennedy
was often the swing vote in decisions decided 5 to 4 on a divided
Bench. After John Roberts became Chief Justice in 2005, Justice Kennedy
was the deciding vote in 92 percent of all cases decided by one vote.
Let me repeat that. Of the 203 cases decided by a 5-to-4 vote in the
John Roberts era, Justice Kennedy was the deciding vote in 186 of
them--92 percent.
The Justice who succeeds Anthony Kennedy on the Supreme Court will
have the opportunity to leave a deep and lasting mark on issues of the
highest magnitude. Any nominee to the Supreme Court carries
significance, but a nominee at this moment, for this seat, will play a
defining role in our Nation's history.

The constitutional obligation conferred on Senators to provide their
advice and consent on a Supreme Court nomination is a powerful, a
serious, and a sacred responsibility. As Senators, we are duty-bound to
determine whether Brett Kavanaugh is worthy of our trust. Even before
President Trump nominated Brett Kavanaugh to the Supreme Court, there
were serious concerns that his views were too extreme, that he lacked
the independence we seek in our judges, and that he had a difficult
relationship with the truth.
During the confirmation process for his current position on the U.S.
Court of Appeals for the DC Circuit, Brett Kavanaugh made misleading
statements under oath to the Senate Judiciary Committee on issues such
as the Bush administration's policies on torture, his involvement in
the nominations of controversial judges, and his knowledge about the
theft of emails from the Democratic staff of the Senate Judiciary
Committee.
Then, when it came time to fill Justice Kennedy's seat on the Supreme
Court, Judge Kavanaugh was hand-picked by the Federalist Society--an
ultraconservative group that is dedicated to installing far-right
judges on our Federal bench. The Federalist Society promised Donald
Trump that the judges on that list would support his partisan agenda if
they were elevated to the Supreme Court. Donald Trump repeatedly
assured his supporters about that agenda and promised them that he
would only appoint Justices to the Supreme Court who would overturn Roe
v. Wade and the Affordable Care Act. Let me restate that. Donald Trump
promised that he would only appoint Justices to the Supreme Court who
would overturn Roe v. Wade and the Affordable Care Act.
As to Brett Kavanaugh, the promises that Donald Trump and the
Federalist Society made were backed up by Kavanaugh's judicial record
on the DC Circuit.
As a Federal appeals court judge, Brett Kavanaugh wrote a dissenting
opinion that questioned Congress's authority to enact the Affordable
Care Act and suggested that the President could choose not to enforce
it.
Judge Kavanaugh would have blocked a lower court's order allowing an
undocumented minor to safely and legally terminate her pregnancy.
Judge Kavanaugh supported employers who sought to deny their
employees access to contraception.
Judge Kavanaugh wrote an opinion that unless guns were regulated
either at the time the Constitution was written or traditionally
throughout history, they could not be regulated now. He would have
struck down the District of Columbia's assault weapons ban because
assault weapons have not historically been banned.
How about 3D-downloaded guns? That was not in the original
Constitution. There was no 3D gun. Are we bound by what the Founding
Fathers thought about weapons or can we ourselves make a determination
here? He says no. It goes back to the time when the Constitution was
drafted or throughout history but not today. That is just wrong.
Judge Kavanaugh has consistently opposed strong environmental
protections and sought to restrict the authority of the Environmental
Protection Agency. He also authored a dissenting opinion that argued
that net neutrality rules were unconstitutional.
Time and again, on all of these issues--access to healthcare, gun
control, consumer and environmental protections, and a free and open
internet--Judge Kavanaugh has been a rubberstamp for a far-rightwing
agenda. Yet that is not the only reason President Trump chose Brett
Kavanaugh for the Supreme Court.
Judge Kavanaugh, who once served as Ken Starr's top deputy in the
investigation of President Clinton, has since written that a sitting
President should not be investigated for allegations of wrongdoing,
should not be indicted or tried while in office, and should not even
have to participate in civil legal proceedings until he leaves office.
This is a convenient reversal of a pro-investigation and pro-litigation
position that Kavanaugh held when a Democrat was in the White House. It
is a reversal that synchronizes very well with Donald Trump's
interests.
With Donald Trump under criminal investigation and with legal issues
arising from that investigation potentially headed to the Supreme Court
and with Brett Kavanaugh's having articulated strong views about
shielding a sitting President from criminal proceedings, his
confirmation is a constitutional crisis in the making. It is no
coincidence that a President who fears the long arm of the law would
nominate to the Supreme Court a jurist who would keep him from its
reach.
Brett Kavanaugh has left a lengthy paper trail on all of these hot-
button issues. That is why President Trump and his allies closed ranks
and fought to keep so much of his record hidden from the American
public. Despite repeated requests from Senate Democrats for documents
relating to Brett Kavanaugh's service in the Bush White House, we--the
Members of the Senate--have only seen 7 percent of those records that
were, in fact, part of Kavanaugh's record inside the Bush White House,
and only about half of

[[Page S6673]]

that 7 percent are available to the public.

To put it another way, no Senator has seen 93 percent of all of Brett
Kavanaugh's work in the White House. That work includes reflections on
his views on the detention of enemy combatants, interrogation
techniques and the use of torture, warrantless wiretapping, and the
banning of same-sex marriage.
We on the Senate floor--and as we cast a vote today--do not have
access to any of those documents that he worked on while he served in
the Bush White House. How can we give advice before we vote on consent
if we can't even gain access to the documents which he himself handled
in the Bush White House and which he himself may have commented upon
during the time they were being considered? We have no access to it.
Ninety-three percent of all of the documents are not available to the
Members of the Senate. Even though there are reams of paper detailing
Brett Kavanaugh's involvement in these issues, his record on them
remains a blank slate for Senators.
To summarize, even before the events of the last 3 weeks, we knew a
lot of things about Brett Kavanaugh and yet, at the same time,
shockingly little about Brett Kavanaugh. We knew we had a blatantly
partisan person, but as you are trying to be nominated for the Supreme
Court, we--the Senators and the American public--have a right to know
what you think about issues. That is why every preceding nominee had to
provide all of the documentation, with the notable exception of Brett
Kavanaugh, who is denying us 93 percent.
This is happening with the acquiescence of the Trump White House and
the Republican leadership here in the Senate. No Member of the Senate,
Democrat or Republican, knows what is in the 93 percent of all of the
papers. No one knows. It is a deliberate coverup of all of those
documents so that we cannot know, so that the public cannot know. So we
begin with that--the 93 percent of all of his records in the White
House that are not accessible to us even though this nominee is given
to us from this White House. We know a lot, but there is much, much
more that we do not know.
We knew that we had a Federalist Society-approved nominee who would
overturn Roe and the Affordable Care Act. We knew we had a President
with a vested interest in finding a future Justice who could shield him
from legal jeopardy, and we knew that there was much else we didn't
know because that 93 percent was being hidden from public scrutiny. All
of these reasons alone were enough to warrant a ``no'' vote on Judge
Kavanaugh's lifetime appointment to the Supreme Court.
Then we learned of Dr. Christine Blasey Ford. Dr. Blasey Ford bravely
came forward to tell us about the Brett Kavanaugh she knew. She came
forward to share a deeply personal and traumatic experience of sexual
assault. Dr. Blasey Ford did not want to share this painful story with
the American public. She did not want to have her life upturned and
picked apart. She did not want to subject her family to harassment and
death threats. She did not want the President of the United States to
shamefully and appallingly mock her at a political rally, but she came
forward anyway. She came forward because she believed it was her civic
duty to do so.
From the beginning, it was clear that her allegations were credible.
She had recounted the painful experiences to her husband, in couples'
counseling, years before Brett Kavanaugh was ever considered for the
Supreme Court--something her therapist's contemporaneous notes
corroborate. Three days before Brett Kavanaugh was nominated, while his
name was publicly in play for the Supreme Court, Dr. Blasey Ford
reached out to her Congresswoman in the hope that she could help inform
President Trump as he decided on a nominee to fill Justice Kennedy's
seat.
Dr. Blasey Ford took a polygraph test to prove that she was truthful,
and she only shared her story publicly when reporters made it untenable
to remain silent. Every detail shows Dr. Blasey Ford to be consistent,
honest, and trustworthy. As hard as it was for her, Dr. Ford did our
country an invaluable service by coming forward, testifying before the
Senate, and telling the entire country her story.
Her testimony was powerful. It was heart-wrenching. When she spoke of
her strongest memory of the assault--the laughter of the two boys as
Brett Kavanaugh pinned her down--we felt her profound pain. When she
spoke of Brett Kavanaugh's covering her mouth as she tried to scream,
we felt her visceral fear. For countless women and men across the
country whose experiences mirror that of Dr. Blasey Ford's, this
testimony was their voice. For many of them, Dr. Blasey Ford's bravery
gave them the courage to come forward with their own stories of sexual
assault.
On the day of her testimony, my office received over 100 calls from
survivors who courageously shared with my staff the painful details of
their own assaults. Many of these men and women were telling their
stories for the first time. Women have stopped me at the airport and on
the street to tell me their stories.
Dr. Ford has given them the counsel to come forward so they can share
their own experiences. Dr. Ford's courage opened a wellspring of
emotion. I applaud her. We owe her a deep debt of gratitude. She was a
role model for all of us, for the children of the country, and for
future generations. She has given new meaning to what it means to be a
good citizen.
Dr. Ford was compelling. She was convincing. She was courageous. She
had nothing to gain and everything to lose. No reasonable, open-minded
person could have listened to Dr. Blasey Ford and concluded anything
other than that she is telling the truth about what happened between
her and Brett Kavanaugh.
Yet there are two sides to every story. What about the other side of
the story? What did Judge Brett Kavanaugh have to say about it after we
heard Dr. Ford testify before the Judiciary Committee? It was Judge
Kavanaugh's turn. What did we hear from Judge Kavanaugh? We heard
anger. We heard belligerence. We heard evasiveness. We heard
disrespect. Judge Kavanaugh's testimony before the Judiciary Committee
reinforced the old concerns about his credibility. He gave answers
about his behavior in high school, about supposed drinking games, and
about his yearbook page that simply defy credulity. Recent reports from
those who knew him in high school and college contradict his assertions
that he was never aggressive or belligerent after drinking or that the
terms he used in his yearbook had the meanings as ascribed to them
before the Judiciary Committee.

In fact, in a letter Judge Kavanaugh himself wrote in 1983 that
surfaced after his testimony, he described himself and his friends as
``loud, obnoxious drunks.''
The point is not that Brett Kavanaugh engaged in questionable
behavior in high school. The point is he was not honest about it with
the Judiciary Committee under oath at his confirmation hearing. The
point is he was not credible. The point is he misled the Judiciary
Committee. As my colleagues framed the issue yesterday, the point is
that if we are assessing whether Dr. Ford's allegations satisfy a more-
likely-than-not standard, they do and do so easily. The point is that
Judge Kavanaugh showed an alarming lack of judicial temperament in
addressing those issues.
Don't take my word for it. Consider what Judge Brett Kavanaugh has to
say. What would Judge Brett Kavanaugh say about Supreme Court nominee
Brett Kavanaugh's appearance before the Judiciary Committee?
Well, in 2015, Judge Brett Kavanaugh gave a speech at the Catholic
University on what makes a good judge. He set forth litmus tests for a
good judge--the characteristics and qualities he or she must have. Here
is what he said then. Brett Kavanaugh said: ``First and obviously, a
good judge, like a good umpire, cannot act as a partisan.'' He went on
to say that it is very important for a judge ``to avoid any semblance
of that partisanship, that political background.'' Yet in his opening
statement to the Judiciary Committee--his opening statement--Judge
Kavanaugh launched into a nakedly partisan screed. He blamed Democratic
Senators for a conspiracy to destroy his nomination. He called the
recent allegations against him a part of some ``revenge of the
Clintons.''

[[Page S6674]]

He told the Democratic Senators on the dais that ``what goes around
comes around,'' making an unvarnished political threat. That was in his
opening statement to the Judiciary Committee. Judge Kavanaugh failed
his own test of partisanship.
Next, in his 2015 Catholic University speech, Judge Kavanaugh said:
``[I]t is critical to have the proper demeanor.'' Judge Kavanaugh added
that it is important for judges ``to keep our emotions in check, and be
calm against the storm.''
Anyone watching Judge Kavanaugh's testimony before the Judiciary
Committee saw just the opposite. Judge Kavanaugh was angry, emotional,
and belligerent. What we saw was a performance we would expect from a
judge on the ``People's Court,'' not on the Supreme Court of the United
States. Judge Kavanaugh failed his own test for judicial temperament.
Finally, in his 2015 Catholic University speech, Judge Kavanaugh
counseled that a good judge ``must demonstrate civility.'' Yet in his
appearance before the Judiciary Committee, Judge Kavanaugh impugned the
motives of Democratic Senators. He was rude. He interrupted questions.
He went so far as to ask my colleague Senator Klobuchar whether she
ever blacked out from drinking--an affront by a nominee who was there
to provide answers, not to ask questions. Brett Kavanaugh failed his
own test of civility.
That is why more than 2,400 law professors have written to the Senate
and told us ``Judge Brett Kavanaugh displayed a lack of judicial
temperament that would be disqualifying for any court, and certainly
for elevation to the highest Court of this land.''
That is why former Supreme Court Justice John Paul Stevens took the
extraordinary step of stating publicly that Judge Kavanaugh's
performance at his qualification hearing disqualified him from serving
on the Supreme Court.
Let me say this: Brett Kavanaugh is not entitled to a job on the
Supreme Court--no one is--but the American people are entitled to the
truth. President Trump and the Senate Republicans have kept it from
them.
The FBI background investigation that was reopened after Dr. Blasey
Ford's testimony was not a real investigation. It was a figleaf to
cover for Republicans with concerns about Judge Kavanaugh.
The FBI interviewed only nine witnesses. Unbelievably, Dr. Blasey
Ford and Judge Kavanaugh were not among the people interviewed by the
FBI. The FBI was forced to ignore countless leaks or not to follow up
on them. Then Senators were given 1 hour to review the results of the
so-called investigation.
I was locked in a secure room with 17 Senators, and there was one
copy of the FBI report for all of us. It was like a bad game show,
where Senators had to compete with each other to get pages of the
report from the hands of their colleagues, read them, and digest them
before the clock ran out on the 1 hour we were given to read the
report. It was the single most absurd thing I have experienced in my
time in Congress.

Sadly, it was entirely consistent with the manner in which the Senate
Republicans have handled this nomination throughout the confirmation
process. That is because the White House and the Senate Republicans
weren't interested in getting to the truth. They were interested in
covering it up and ramming through Judge Kavanaugh's nomination.
They have gone so far as to stoke claims that Dr. Ford's supporters
have an ulterior motive and that Dr. Ford is being used for political
reasons. It seems that many of my Republican colleagues just cannot
bring themselves to believe a woman's account of a sexual assault and
that other women and men would rise up in support of her. It is
shameful that people think this is what has occurred. It is just
shameful.
Article III of the Constitution says that a Supreme Court Justice
``shall hold their Office during good behavior.'' That is the standard
after someone serves on the Supreme Court. What this body has been
unwilling to do is to actually determine whether Judge Kavanaugh has
engaged in good behavior before he is put on the Court. They have
truncated that process. They have made it impossible for us to get to
the bottom of that truth.
The Republicans control this Chamber. They control the schedule. They
have rushed to judgment on Brett Kavanaugh in order to confirm him
before the midterm elections.
They have 51 votes to confirm anyone they want. The Democrats do not
control this Chamber. The Republicans have 51 votes. If they wanted to
bring in someone else who did not have these problems, they could have
done it anytime. They could do it today.
Some say we have no power to stop the Republicans from confirming a
Justice this year--no power. That is absolutely untrue. What the
Republicans have in their power, however, is to nominate someone--even
today--who is worthy of serving on the Supreme Court.
We know they want a Supreme Court Justice who would overturn Roe v.
Wade. We know they want a Supreme Court Justice who will take away
health insurance coverage for preexisting conditions. We know they want
a Justice who will oppose any gun control, and we know they want a
Supreme Court Justice who will not question Donald Trump or let him be
investigated.
If Brett Kavanaugh is confirmed, it will further harm a Supreme Court
that has never fully recovered from Bush v. Gore--the partisan decision
that threw the 2000 Presidential election to George W. Bush. It will
further harm a Supreme Court that has not recovered from Judge Neil
Gorsuch joining the Court after Senate Republicans stole that seat from
Judge Merrick Garland. Confirming Judge Kavanaugh to the Supreme Court
will further erode and undermine the Court's legitimacy and continue to
diminish the American people's trust in it.
The Supreme Court of the United States deserves better than Brett
Kavanaugh. The American people deserve better. Our democracy deserves
better.
I will therefore vote no on the nomination of Judge Kavanaugh to
serve as an Associate Justice on the Supreme Court of the United
States, and I urge my colleagues to vote no as well.
Thank you.
I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mrs. SHAHEEN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The Senator from New Hampshire.
Mrs. SHAHEEN. Madam President, I come to the floor to join so many of
my colleagues in expressing my opposition to Brett Kavanaugh's
nomination to serve as an Associate Justice on the Supreme Court.
As the highest Court in the land, the Justices on the Supreme Court
are tasked with the enormous responsibility of interpreting and
protecting the fundamental constitutional rights that are guaranteed to
all Americans. Its decisions are not abstract legal principles that are
reserved for a few. Its decisions affect the rights of all of us. They
touch on issues that affect all of our daily lives--from the healthcare
we receive to the person we can marry, to the air we breathe. These are
significant stakes that we face when considering any nominee to serve
on the Supreme Court.
Weeks ago, I announced my opposition to Judge Kavanaugh's nomination
based on concerns I had with his record. Even though--as Senator Markey
pointed out so eloquently--we haven't gotten to see a lot of that
record, we have enough to know that I have very serious concerns about
Judge Kavanaugh. I want to talk about a couple of those and actually
highlight three concerns.
First is his opposition to the Affordable Care Act. I believe all
Americans in this country--everyone in this country--should have access
to healthcare, healthcare they can afford so they don't have to worry
when they take their kids to the doctor, so they don't have to worry
about being bankrupt because they can't afford the costs, and so they
don't have to worry if they develop a serious illness. Yet Judge
Kavanaugh dissented in a decision to uphold the Affordable Care Act,
and as

[[Page S6675]]

a result of that decision, he puts critical protections for millions of
Americans with preexisting conditions at risk.
It is particularly concerning now, when we know there is a court case
in Texas which the Government of the United States has declined to
continue to defend that puts at risk the requirement that insurance
companies cover those with preexisting conditions.
You can talk about trying to bandaid over that any way you want, but
the fact is, unless we have a real healthcare program, as we have under
the Affordable Care Act, insurance companies are not going to cover
people with preexisting conditions, and they are going to charge you
more if they do cover you.
Second, I am very concerned about his opposition to women's
reproductive rights. Judge Kavanaugh has praised Justice Rehnquist's
dissent in the landmark Roe v. Wade decision that guarantees women's
rights to make their own reproductive decisions. I believe that is one
of the most basic and fundamental rights we have, not just as women but
that families have. Women should be able to make that decision in
consultation with their families, with their physicians, according to
their religious beliefs, and this should not be something the
government dictates. Yet Brett Kavanaugh suggests this fundamental
basic right is up for consideration.
Finally, I have a serious concern about Judge Kavanaugh's view of
executive branch power that could place the President above the law.
Judge Kavanaugh has said that sitting Presidents can't be indicted,
can't be prosecuted, and should have the authority to fire a special
counsel at will. Well, with the Mueller investigation, with so many
concerns that have been raised about this President's manipulation of
laws that have allowed him to enrich himself and his company, where he
has been suggesting that he may fire the Attorney General because he is
not willing to do his bidding at the Justice Department--I just don't
see how we can put somebody on the Supreme Court who thinks that the
President is above the law.
As I have learned American history and our Constitution and our
values and principles, I believe that nobody is above the law in our
democracy, including the President of the United States, and I think we
need a Supreme Court Justice who believes the same thing. Yet what we
have heard from Judge Kavanaugh suggests that he thinks the President
is above the law.
At the time I announced my opposition to the nominee, we had not
heard the allegations of sexual assault against Judge Kavanaugh. In the
weeks since those allegations have come out, this Senate, this country,
have been rocked by those allegations. I was one of the many millions
of Americans throughout the country who tuned in to closely watch that
hearing when Christine Blasey Ford shared her story. Her testimony in
front of the Judiciary Committee was sincere and credible, and I
believe her.
The impact of Dr. Ford's testimony is very telling about the
pervasiveness of sexual violence in our culture. The allegations made
by Christine Ford and others were serious and trustworthy, and I
believe they should have been thoroughly and impartially investigated,
and they were not.
But on the positive side, Dr. Ford's bravery has given so many women
in this country the courage to tell their stories. She gave others
courage, and we have seen an outpouring from survivors who now feel as
though they, too, can come forward.
Senator Markey talked about the number of people that he has heard
from in his office, and I have heard that same story time and again
from so many of my colleagues. We are certainly seeing this in New
Hampshire. The Sexual Harassment and Rape Prevention Program, which is
also called SHARP--a program at the University of New Hampshire that
provides services and support to sexual assault survivors--reported an
increase in people reaching out for help. I have heard from crisis
centers across the Granite State that have fielded an influx of calls
from survivors who can relate to Dr. Ford's testimony and who feel
compelled to speak out.
On Tuesday, I spoke with the New Hampshire Coalition Against Domestic
and Sexual Violence, which told me that they have seen similar
reactions with survivors who are now stepping forward--women and men
whose trauma of sexual assaults has been revived by Christine Ford's
testimony.
Like my colleagues, I have received letters from sexual assault
survivors who have been deeply affected by Dr. Ford's testimony and
whose courage has given them the strength to share their own stories.
What has been amazing to me as I have read them, when I have heard from
people who have contacted our office, is that some of them are in their
seventies and eighties, and they reveal decades-old sexual assaults for
the very first time.
These wounds are real. The wounds are raw. And it is incumbent on all
of us in this body--regardless of where you stand on Brett Kavanaugh--
it is incumbent on all of us to not deepen those scars by diminishing
the pain of these women as political theater. This is not political
theater, and it should not be viewed through a partisan lens.
In those emotional emails and calls and letters from dozens of women
and a few men--I think sometimes we forget that sexual assault doesn't
just happen to women; it happens to men--they have described their
sexual assaults and how they have been affected by the events of
Christine Ford's testimony and the hearing with Judge Kavanaugh. In so
many of those letters and emails, they talk about the details of what
they experienced in those sexual assaults--how it has affected them;
how it has affected their lives; the fact that, in most cases, they
didn't tell anybody because they didn't feel they would be believed or
they thought they would be demeaned or they thought it was their fault.
What has been interesting to me in those letters and emails has been
that so many of the people we have heard from have not just told their
personal stories, but they have expressed their concerns about the
country as part of writing in--concerns that we are so divided, that we
are so angry, that we are so uncivil to one another. Sadly, they are
right, based on what they have seen over the last couple of weeks. We
have seen that at political rallies over the past few years, and we
have seen it in this building. We must do better. The disunity that we
model here is hurting the country. The scorched-earth politics that
have been practiced here are deepening our divide.

I will oppose Judge Kavanaugh's nomination, and I continue to hope
that something may happen at the eleventh hour; I know that is not
likely. But I also will encourage my colleagues on both sides of the
aisle to think about this moment, to reflect on our obligations to the
American people, to the U.S. Senate, and to considering future Supreme
Court nominees. So many people have said that this process has
undermined the faith of the American people in the ability of the
Supreme Court to be an objective arbiter of cases that come before
them. This process has inflamed existing divides within our country and
within Congress, and we can't let this become the status quo. As an
institution, as a legislative body, we must be better than this.
I have always been told that when we are standing at the edge of an
abyss, the best step is always backward. So I hope all of us can take a
step back. I hope we can take a step back when we are past this
nomination, that we can return to a more civil discourse. I hope that
we can better try to understand each other's points of view and that we
can see each other's humanity. I hope that we can be better stewards of
our democracy because this country demands it.
Thank you, Madam President.
I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. BROWN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. BROWN. Madam President, I announced my decision to vote against
Judge Kavanaugh several weeks ago, after meeting with him and after
studying his record, because he essentially put his thumb on the scale
in support of corporate interests. He has

[[Page S6676]]

consistently sided with corporate special interests, large corporations
that outsource jobs over workers, and has sided with Wall Street over
consumers.
I made that decision before Dr. Ford came forward, but I am grateful
for her. I am grateful she did, even at great personal cost and
personal risk. I believe Dr. Ford. Why in the world would someone do
what she said--again, at great personal cost and great personal risk--
if she weren't telling the truth precisely? I am grateful to her. I am
grateful for all of the brave women inspired by her to speak out and
share their own stories. A number of them have written to my office. A
number of them I have spoken to on the phone. Some of them told us for
the first time in their lives, after--one woman was in her seventies,
and it was the first time she had spoken of her sexual assault.
Please understand, all of the people, all of the women and men--I
have gotten letters from men, too, but mostly women--understand. To all
of you all over the country: We see you. We hear you. Your story
matters, and you make a difference.
It is wrong that political influence and artificial deadlines put on
them, imposed by the majority leader down the hall and the President of
the United States--artificial deadlines and political influence
prevented the FBI from performing the complete and thorough
investigation the American people deserve. Instead, Senate leaders and
the White House straightjacketed the FBI.
I don't blame the FBI. They only did what Senate leaders--what
Republican leaders who wanted to ram this nomination through as quickly
as possible and the White House, which would never want to compromise
on anything like this--they straightjacketed the FBI. They kept our law
enforcement professionals from doing their job.
According to Dr. Ford's lawyer, the FBI didn't even speak to more
than a dozen witnesses that Dr. Ford asked them to interview. They are
trying to corroborate whether her story was true, but the FBI then
didn't interview Dr. Ford or Judge Kavanaugh, nor did they interview
the people Dr. Ford suggested to them, the names that Dr. Ford gave
them, people who could corroborate what happened. So the FBI did not
interview any of the people that Dr. Ford asked or Dr. Ford herself.
Then my colleagues say that there is no corroborating evidence, so
she didn't do it, so we have to believe Judge Kavanaugh. That is their
logic: The investigation--again, not because the FBI didn't want to do
it right but because of what leadership, what political leadership,
elected officials and bureaucrats in the White House and the Senate did
to prevent the FBI from doing its job--that is why that was a scam.
So what really matters here? It really matters that we listen to
women. It also really matters because the Supreme Court has enormous
influence over the lives of everyone in my State. Any nominee must
defend the rights of all Americans to have comprehensive healthcare
coverage and make their own healthcare decisions, must defend the
rights of Americans to collectively bargain for safe workplaces and
fair pay.
I don't think my colleagues really understand the process of
collective bargaining. I am working on a bipartisan basis with a number
of our colleagues on a pension bill right now. I don't know that our
colleagues here understand that people--when it comes to pensions, they
sit down at the bargaining table, and they give up wages today so they
will have a secure retirement. I am concerned about this Supreme
Court's rejection, potentially, of collective bargaining rights and
safe workplaces and fair pay and fair benefits. I am concerned about
this Court in terms of protecting American workers and American
consumers from discrimination and, shall we say, Wall Street greed.
I am troubled already by the Supreme Court's recent decisions
stripping rights from Ohioans on many issues. That is why I met with
Judge Kavanaugh before I made my decision earlier this summer and why I
asked him about his views on the issues that matter to Ohioans. I
reviewed his record. I am not a lawyer, but I pay a lot of attention to
these issues. I looked at these decisions, and I listened to Ohioans
who weighed in. It was clear that I could not support Judge Kavanaugh's
nomination to our highest Court, again, because he puts his thumb on
the scale of justice, always with a bias toward corporate interests
over workers, over consumers.
On healthcare, you have heard Senator Shaheen, Senator Markey,
Senator Hassan; I listened late last night. You have heard them talk
about preexisting conditions. This Court is moving toward saying to the
health insurance industry: You can cancel the insurance of people with
preexisting conditions.
For 10 years, we have had consumer protections. If you are a cancer
survivor, if you have asthma, as my wife had at a young age and has
continued to manage her asthma well--and she has said very publicly
that we can talk about this--or if you have Parkinson's or any other
preexisting condition--heart disease or high blood pressure--you are
protected from the insurance company canceling your insurance. That has
been the law for 10 years. That law is under duress.
If this body votes to confirm Judge Kavanaugh today, it means that 5
million Ohioans--almost half of the people in my State have a
preexisting condition. It means they should be concerned that this
Supreme Court will take away those consumer protections and will say to
the insurance company: You can cancel somebody if they get expensive.
You can cancel somebody's insurance if you find out they had cancer.
You can do all those things.
Its rulings and positions on the rights of Ohio workers and women and
consumers would take us in exactly the wrong direction. His nomination
comes when the stakes for working Ohioans couldn't be higher. He will
talk about settled law, but settled law is only settled--again, I am
not a lawyer, but this is pretty obvious. Settled law is only settled
until the Supreme Court says it isn't. We know it with voter rights; we
know it just recently with worker rights.
Last term, the Court issued a string of anti-worker decisions. In
Janus v. AFSCME, the Court overturned decades of precedent--oh, yeah,
settled law--and limited the ability of public sector unions to
advocate for the workers they serve. This is a Supreme Court that
almost always sides with corporations over unions, with corporations
over workers, with corporations over consumers.
The decision in Epic Systems Corp v. Lewis limited the ability of
workers to have their day in court when they are mistreated by their
employer. The power already rests with employers on all of these kinds
of worker-employer issues. This Court wants to make it worse. Judge
Kavanaugh's record shows that he will accelerate that direction. This
Court has proved time and again that it stands on the side of powerful
corporations, not American workers.
We know what has happened in this country. We know that profits have
gone up. We know that executive compensation has exploded. We know that
productivity is up for workers, but we know that workers' wages have
been stagnant. So the top 1 percent or 5 percent--they are doing great.
They get big tax cuts. They get stock dividend buybacks. They get all
kinds of breaks. The fact is, workers have seen their wages stagnate.
This Court will make it worse.

There are several cases next term where the Court has the power to
fundamentally tip the balance of power even further toward
corporations--cases like Lamps Plus Inc. v. Varela, in which the Court
could rule on whether a worker can file a class action suit against an
employer that violates her privacy and releases personal information to
the public. An individual worker never has the power or the money to
hire an attorney to take on these companies. That is why workers need
to band together to take on a powerful company, a powerful employer, a
powerful corporation.
In another case, New Prime Inc. v. Oliveira, the Court will decide
whether a worker who was misclassified as an independent contractor can
bring a class action lawsuit, whether the Federal Arbitration Act
applies to an independent contractor agreement. In other words, this
Court has already moved in the direction--as this Congress did, by one
vote, if I recall--of giving corporations more power, in saying to
employees: Sorry, you don't

[[Page S6677]]

get your day in court. Again, employees individually don't have the
financial wherewithal to be able to go to court and hire a lawyer, but
if the employees band together, they can. That is what the issue of
forced arbitration is about. That is what Judge Kavanaugh has
consistently been wrong about.
I have looked at his record. It is clear, we can't trust him to stand
with Ohio workers in any of these cases. He has opposed basic
protections for workers trying to hold employers accountable--cases
like AFGE v. Gates. He has consistently ruled against claims of worker
discrimination and worker safety violations. He has consistently ruled
against workers who stand up to corporate mistreatment in cases like
Verizon New England v. National Labor Relations Board.
His nomination also poses a serious threat to the 5 million Americans
under age 65 with preexisting conditions. Again, that is half of my
State. If you meet a 40- or a 50-year-old--if you are in almost any
group, you sit there and you look to your right and you look to your
left, one of those two people, on average, is going to have a
preexisting condition. Is their insurance going to be jeopardized? It
is with this Congress, which wants to do this, and this Supreme Court
and this President want to strip away the consumer protections for
people with preexisting conditions.
They want to give the insurance companies the right to cancel your
insurance. Oh, you have cancer? You cost us a lot. I am the insurance
company; you cost us a lot. I am going to cancel your insurance then
because you cost us too much money. You can't do that under present
law. You can't do that because of the Affordable Care Act. They will be
able to do it if Judge Kavanaugh gets on the Court because you can bet
the Court is moving in that direction.
Consumer protections are under attack in our court system right now
with the case of Texas v. United States. It is likely going to make its
way to the Supreme Court, and Judge Kavanaugh's record on healthcare
gives us a pretty darned good clue how he would rule.
He refused to uphold the entire law that is constitutional--a law
that says if your child has diabetes or your mother has asthma, the
insurance companies can't raise your costs or turn them away.
This is about the cost of health insurance. It is about saying all of
us want good insurance. All of us want to be able--nobody wants to get
sick. Nobody wants to have high healthcare costs. The reason we have
insurance is so that people who get sick can make sure they keep their
insurance and can have help. But the insurance companies--if they get
their way now, they may not deny you care if you have cancer; they will
just raise your rates so high that you will not be able to afford it.
There really is no difference.
Without these protections, insurance companies will once again be
free to charge you five times the rate of your neighbor. If you are
sick, if you have neighbors on both sides who aren't, they will raise
your rates because you are sick, if they have their way. We can't risk
it. You are lucky enough to be well; your neighbor is diagnosed with
high blood pressure; the other neighbor, their child has epilepsy, and
their rates get raised, but yours don't, all because Judge Kavanaugh
and this Court and this Congress seem to want it that way. We can't
risk Ohio families not having access to care by sending him to the
Supreme Court.
It is not just on preexisting conditions where he would pose a threat
to Ohio's healthcare. Dozens of cases pending in lower courts could
determine the price you pay for healthcare over the next few years or
whether you get care at all. Again, if the price is so high, it is the
same as denying you care because you can't afford it. There are cases
on everything from false advertising by insurance companies to whether
your employer is required to give you access to healthcare.
Of course, we know that the stakes are particularly high for women.
That was true before Dr. Ford courageously came forward. It remains
true. We can't risk the ability of Ohio women to make their own
personal private health decisions between themselves and their doctors
by giving a lifetime appointment to a judge who has shown repeated
hostility to women's healthcare freedom.
We know the promises President Trump made when he was a candidate,
saying that he would put somebody on the Supreme Court who would
overturn Roe v. Wade. We know the list of judges he chose from, and the
Federalist Society had that same commitment to overturn Roe v. Wade.
Anybody in this body that thinks the judge is promising that this is
settled law ought to use the cliche that I have a bridge to sell you.
It is clear what he is going to do if he is on the Court.
This whole issue, this whole vote, this whole nomination comes down
to this: Whose side are you on? Are you a judge who stands on the side
of workers or multinational corporations? Will you stand on the side of
a mother seeking treatment or on the side of insurance companies who
want to raise her rates to deny her care?
Judge Kavanaugh's record is clear. He has consistently sided with the
most powerful special interests in this country--not American workers,
not American consumers, not American patients who struggle with the
cost of their healthcare. The stakes for Ohio are too high to give this
judge a lifetime appointment to our highest Court.
Mr. President, I ask unanimous consent that several documents
corroborating Dr. Ford's allegations against Judge Kavanaugh and a
statement from Dr. Ford's attorneys be printed in the Record
There being no objection, the material was ordered to be printed in
the Record, as follows:

October 5, 2018.

Statement by Debra S. Katz, Lisa J. Banks and Michael R. Bromwich,
attorneys for Dr. Christine Blasey Ford

As the Senate debates the nomination of Brett Kavanaugh,
numerous false claims have been repeated to undermine the
credibility of Dr. Christine Blasey Ford. Whatever the
outcome, Senators deserve to know the truth:
1. An FBI investigation that did not include interviews of
Dr. Ford and Judge Kavanaugh is not a meaningful
investigation in any sense of the word.
2. Had the FBI interviewed Dr. Ford, she would have
answered questions about Judge Kavanaugh's assault, including
questions that Ms. Mitchell and the Judiciary Committee
members failed to ask during the hearing. She would have
provided corroborating evidence, including her medical
records and access to the phone from which she sent messages
to a reporter about the assault prior to his nomination to
the Supreme Court.
3. The suggestion that our refusal to give medical records
to the Judiciary Committee bears on Dr. Ford's credibility is
completely false. The Committee has released every document
we have exchanged, and in the case of their letters to us,
sometimes before we received them. We lost confidence in the
Committee's ability or desire to maintain the confidentiality
of materials and information we provided, especially with
respect to something as sensitive as medical records.
4. Dr. Ford wanted to detail the events of the sexual
assault by Judge Kavanaugh directly to members of the
Judiciary Committee. Dr. Ford was timely provided with all
communications from the Majority's staff and chose from the
multiple options she was given by them. At the hearing, Dr.
Ford understood Senator Grassley's comment to be that he
personally would have flown to California to speak with her.
She would have welcomed Senator Grassley and other Committee
members to California but that was not one of the options
offered by Committee staff.
5. At no time did members of Dr. Ford's team advise
Committee staff that she could not travel to Washington, D.C.
because of her fear of flying. Rather, staff was told that
Dr. Ford could not travel on the schedule the Committee
demanded because she was focused on taking measures to
protect her family from threats, including death threats.
Those measures included meeting with the FBI to report these
disturbing threats. In fact, Dr. Ford does have a decades-
long fear of flying for which she takes medication prescribed
by a physician, but this had no impact on the timing of her
testimony.
6. Committee staff repeatedly rejected our requests for
multiple corroborating witnesses to be allowed to testify,
including Jeremiah Hanafin, the highly experienced former FBI
agent who administered the polygraph to Dr. Ford on August 7,
2018. He was also prepared to cooperate with the FBI's
investigation, including making the underlying polygraph
results and process available. Had Mr. Hanafin been permitted
to testify or been interviewed by the FBI, he would have
explained that his conclusions of ``no deception'' were
validated by four independent outside reviewers. There were
seven people whom Dr. Ford told about the assault prior to
the nomination who could have testified to the Committee or
been interviewed by the FBI.
In her testimony, Dr. Ford said: ``It is not my
responsibility to determine whether Mr.

[[Page S6678]]

Kavanaugh deserves to sit on the Supreme Court. My
responsibility is to tell the truth.''
We believe Christine Blasey Ford and we fully support her.
Senators claiming to want a dignified debate should not
repeat lies constructed by the Judiciary Committee that were
cynically designed to win support for Judge Kavanaugh.
____

July 30, 2018.
Confidential

Senator Dianne Feinstein.
Dear Senator Feinstein: I am writing with information
relevant in evaluating the current nominee to the Supreme
Court. As a constituent, I expect that you will maintain this
as confidential until we have further opportunity to speak.
Brett Kavanaugh physically and sexually assaulted me during
High School in the early 1980's. He conducted these acts with
the assistance of his close friend, Mark G. Judge. Both were
1-2 years older than me and students at a local private
school. The assault occurred in a suburban Maryland area home
at a gathering that included me and 4 others. Kavanaugh
physically pushed me into a bedroom as I was headed for a
bathroom up a short stairwell from the living room. They
locked the door and played loud music, precluding any
successful attempts to yell for help. Kavanaugh was on top of
me while laughing with Judge, who periodically jumped onto
Kavanaugh. They both laughed as Kavanaugh tried to disrobe me
in their highly inebriated state. With Kavanaugh's hand over
my mouth, I feared he may inadvertently kill me. From across
the room, a very drunken Judge said mixed words to Kavanaugh
ranging from ``go for it'' to ``stop''. At one point when
Judge jumped onto the bed, the weight on me was substantial.
The pile toppled, and the two scrapped with each other. After
a few attempts to get away, I was able to take this opportune
moment to get up and run across to a hallway bathroom. I
locked the bathroom door behind me. Both loudly stumbled down
the stairwell, at which point other persons at the house were
talking with them. I exited the bathroom, ran outside of the
house and went home.
I have not knowingly seen Kavanaugh since the assault. I
did see Mark Judge once at the Potomac Village Safeway, where
he was extremely uncomfortable seeing me.
I have received medical treatment regarding the assault. On
July 6, I notified my local government representative to ask
them how to proceed with sharing this information. It is
upsetting to discuss sexual assault and its repercussions,
yet I felt guilty and compelled as a citizen about the idea
of not saying anything.
I am available to speak further should you wish to discuss.
I am currently vacationing in the mid-Atlantic until August
7th and will be in California after August 10th.
In Confidence,
Christine Blasey,
Palo Alto, California.
____

Text Messages Between Dr. Ford and the Washington Post Tip Line

friday, july 6, 2018

10:26 AM: Dr. Ford--Potential Supreme Court nominee with
assistance from his friend assaulted me in mid 1980s in
Maryland. Have therapy records talking about It. Feel like I
shouldn't be quiet but not willing to put family in DC and CA
through a lot of stress
11:47 AM: Dr. Ford--Brett Kavanaugh with Mark Judge and a
bystander named PJ.

tuesday, july 10, 2018

8:03 AM: Dr. Ford--Been advised to contact senators or NYT.
Haven't heard back from WaPo.
9:21 AM: Washington Post--I will get you in touch with
reporter
____

Declaration of Russell Ford

I, Russell Ford, hereby state that I am over eighteen (18)
years of age, am competent to testify, and have personal
knowledge of the following facts:
1. I have a Master of Science degree and a Doctor of
Philosophy degree in mechanical engineering from Stanford
University.
2. I have been married to Christine Blasey Ford since June
2002. We have two children.
3. The first time I learned that Christine had any
experience with sexual assault was around the time we got
married, although she did not provide any details.
4. Christine shared the details of the sexual assault
during a couple's therapy session in 2012. She said that in
high school she had been trapped in a room and physically
restrained by one boy who was molesting her while another boy
watched. She said she was eventually able to escape before
she was raped, but that the experience was very traumatic
because she felt like she had no control and was physically
dominated.
5. I remember her saying that the attacker's name was Brett
Kavanaugh, that he was a successful lawyer who had grown up
in Christine's home town, and that he was well-known in the
Washington, D.C. community.
6. In the years following the therapy session, we spoke a
number of times about how the assault affected her.
7. The next time she mentioned that Mr. Kavanaugh was the
person who sexually assaulted her was when President Trump
was in the process of selecting his first nominee for the
Supreme Court. Before the President had announced that Judge
Neil Gorsuch was the nominee, I remember Christine saying she
was afraid the President might nominate Mr. Kavanaugh.
8. These conversations about Mr. Kavanaugh started again
shortly after Justice Anthony Kennedy announced his
resignation and the media began reporting that Mr. Kavanaugh
was on the President's ``short list.''
9. Christine was very conflicted about whether she should
speak publicly about what Mr. Kavanaugh had done to her, as
she knew it would be emotionally trying for her to relive
this traumatic experience in her life and hard on our family
to deal with the inevitable public reaction. However, in the
end she believed her civic duty required her to speak out.
10. In our 16 years of marriage I have always known
Christine to be a truthful person of great integrity. I am
proud of her for her bravery and courage.
I solemnly swear or affirm under the penalties of perjury
that the matters set forth in this Declaration are true and
correct to the best of my personal knowledge, information,
and belief. Executed on this 25th day of September, 2018.
Russell Ford.
____

Declaration of Keith Koegler

I, Keith Koegler, hereby state that I am over eighteen (18)
years of age, am competent to testify, and have personal
knowledge of the following facts:
1. I graduated from Amherst College in 1992 with a
Bachelor's Degree in History. I earned my Juris Doctor degree
from Vanderbilt Law School in 1997.
2. I have known Christine Blasey Ford and her husband,
Russell Ford, for more than five years, and consider them
close friends.
3. We met when I was coaching their son's baseball team.
Our children are close friends and have played sports
together for years. I have spent a lot of time with Christine
and her husband traveling to and attending our kids' games.
Our families have also gone on vacation together.
4. The first time I learned that Christine had experienced
sexual assault was in early summer of 2016. We were standing
together in a public place watching our children play
together.
5. I remember the timing of the conversation because it was
shortly after Stanford University student Brock Turner was
sentenced for felony sexual assault after raping an
unconscious woman on Stanford's campus. There was a common
public perception that the judge gave Mr. Turner too light of
a sentence.
6. Christine expressed anger at Mr. Turner's lenient
sentence, stating that she was particularly bothered by it
because she was assaulted in high school by a man who was now
a federal judge in Washington, D.C.
7. Christine did not mention the assault to me again until
June 29, 2018, two days after Justice Anthony Kennedy
announced his resignation from the Supreme Court of the
United States.
8. On June 29, 2018, she wrote me an email in which she
stated that the person who assaulted her in high school was
the President's ``favorite for SCOTUS.''
9. On June 29, 2018, I responded with an email in which I
stated:
``I remember you telling me about him, but I don't remember
his name. Do you mind telling me so I can read about him?''
10. Christine responded by email and stated:
``Brett Kavanaugh''
11. In all of my dealings with Christine I have known her
to be a serious and honorable person.
I solemnly swear or affirm under the penalties of perjury
that the matters set forth in this Declaration are true and
correct to the best of my personal knowledge, information,
and belief. Executed on this 24th day of September, 2018.
Keith Koegler.
____

Declaration of Adela Gildo-Mazzon

I, Adela Gildo-Mazzon, hereby state that I am over eighteen
(18) years of age, am competent to testify, and have personal
knowledge of the following facts:
1. I have known Christine Blasey Ford for over 10 years and
consider her to be a good friend. Our children attended
elementary school together.
2. In June of 2013, Christine and I met at a restaurant
that was then called Pizzeria Venti Mountain View, located at
1390 Pear Avenue, Mountain View, California.
3. I remembered the year of the meeting because I was
temporarily working in the South Bay at that time. I would
pass Mountain View on my way home, so that restaurant was a
convenient place to arrange a meeting. I believe this was the
only time I ever went to this restaurant. I also have a
receipt from the restaurant from that meal.
4. During our meal, Christine was visibly upset, so I asked
her what was going on.
5. Christine told me she had been having a hard day because
she was thinking about an assault she experienced when she
was much younger. She said that she had been almost raped by
someone who was now a federal judge. She told me she had been
trapped in a room with two drunken guys, and that she then
escaped, ran away, and hid.
6. Christine said it was a scary situation and that it has
impacted her life ever since.
7. The last time I saw Christine was in May 2018.

[[Page S6679]]

8. After reading her first person account of the assault in
The Washington Post on September 16, 2018, I contacted
Christine's lawyers to advise them that she had told me about
this assault in 2013.
I solemnly swear or affirm under the penalties of perjury
that the matters set forth in this Declaration are true and
correct to the best of my personal knowledge, information,
and belief. Executed on this 24th day September, 2018.
Adela Gildo-Mazzon.
____

Declaration of Rebecca White

I, Rebecca White, hereby state that I am over (18) years of
age, am competent to testify, and have personal knowledge of
the following facts:
1. I have been friends with Christine Blasey Ford for more
than six years. We are neighbors and our kids went to the
same elementary school.
2. In 2017, I was walking my dog and Christine was outside
of her house. I stopped to speak with her, and she told me
she had read a recent social media post I had written about
my experience with sexual assault.
3. She then told me that when she was a young teen, she had
been sexually assaulted by an older teen. I remember her
saying that her assailant was now a federal judge.
4. I have always known Christine to be a trustworthy and
honest person.
I solemnly swear or affirm under the penalties of perjury
that the matters set forth in this Declaration are true and
correct to the best of my personal knowledge, information,
and belief. Executed on this 25 day of Sept, 2018.
Rebecca White.
____

Jeremiah P. HanaFin--Polygraph Examination Report

Date of Report--08/10/2018.
Date of Examination--08/07/2018.
Location of Examination--Hilton Hotel, 1739 West Nursery
Road, Linthicum Heights, MD 21090.
Examinee's Name--Christine Blasey.
Synopsis--On August 7, 2018, Christine Blasey reported to
the Hilton Hotel, 1739 West Nursery Road, Linthicum Heights,
MD 21090, for the purpose of undergoing a polygraph
examination. The examination was to address whether Blasey
was physically assaulted by Brett Kavanaugh while attending a
small party in Montgomery County, MD. This assault occurred
in the 1980's when Blasey was a high school student at the
Holton-Arms School. Accompanying Blasey was Attorney Lisa
Banks of the firm Katz, Marshall & Banks. After introductions
were made, this examiner left the room so Blasey and Attorney
Banks could discuss this matter. During this discussion,
Blasey provided a written statement to Banks detailing the
events that occurred on the evening of the assault. The
statement was provided to this examiner when he returned.
Blasey stated that the statement was true and correct and
signed it in the presence of this examiner and Banks
attesting to its accuracy. A copy of this statement is
attached to this report. After a brief discussion, Banks
departed.
Blasey was then interviewed in an effort to formulate the
relevant questions. During this interview, Blasey described
the events that occurred on the night of the assault. She
stated she attended a small party at a house where the
parents were not home. Those attending the party were
drinking beer. Blasey stated that Kavanaugh and his friend,
Mark, became extremely intoxicated. Blasey stated that she
had met Kavanaugh before at previous parties and she briefly
dated one of his friends. She stated that Kavanaugh attended
Georgetown Preparatory School and she previously attended
parties hosted by students of this school. Blasey remembers
another male at this party, PJ, who she described as a very
nice person. At some point in the evening, Blasey went
upstairs to use the restroom. When she got upstairs, she was
pushed into a bedroom by either Kavanaugh or his friend,
Mark. The bedroom was located across from the bathroom. She
was pushed onto a bed and Kavanagh got on top of her and
attempted to take her clothes off. She stated she expected
Kavanaugh was going to rape her. Blasey tried to yell for
help and Kavanaugh put his hand over her mouth. Blasey
thought if PJ heard her yelling he may come and help her.
Blasey stated that when Kavanaugh put his hand over her mouth
that this act was the most terrifying for her. She also
stated that this act caused the most consequences for her
later in life. Blasey stated that Kavanaugh and Mark were
laughing a lot during this assault and seemed to be having a
good time. Kavanaugh was having a hard time trying to remove
Blasey's clothes because she was wearing a bathing suit
underneath them. She stated Mark was laughing and coaxing
Kavanaugh on. Blasey recalls making eye contact with Mark and
thinking he may help her. Mark continued to encourage
Kavanaugh. On a couple of occasions, Mark would come over and
jump on the bed. The last time he did this, all three became
separated and Blasey was able to get free and run to the
bathroom. She stated she locked herself in the bathroom until
she heard Kavanaugh and Mark go downstairs.
Following this interview, Blasey was given a polygraph
examination consisting of the following relevant questions:

Series I

A. Is any part of your statement false? Answer: No
B. Did you make up any part of your statement? Answer: No
Four polygraph charts (which included an acquaintance or
``stim'' chart) were collected using a Dell Inspiron 15
notebook computer and Lafayette LX4000 software. This
software obtained tracings representing thoracic and
abdominal respiration, galvanic skin response, and cardiac
activity. All of these physiological tracings were stored in
the computer along with the time that the questions were
asked as well as text of each question.
The format of the test was the two question Federal You
Phase Zone Comparison Test (ZCT). As part of a 2011 meta-
analysis study done by the American Polygraph Association
(APA), the ZCT is one of the polygraph examinations
considered valid based upon defined research protocol. As
part of the validation process, the APA chose techniques that
were reported in the Meta 22 Analytic Survey of Validated
Techniques (2011) as having two, independent studies that
describe the criterion validity and reliability. The ZCT
includes relevant questions addressing the issues to be
resolved by the examination, comparison questions to be used
in analysis, symptomatic questions, and neutral or irrelevant
questions. All questions were reviewed with Blasey prior to
the test. The charts collected were subjected to a numerical
evaluation that scored the relative strength of physiological
reactions to relevant questions with those of the comparison
questions. An analysis was conducted using a three (3) point
scale (-1, 0, +1). If reactions were deemed to be greater at
the relevant questions, then a negative score was assigned.
If responses were deemed to be greater at the comparison
questions, then a positive score was assigned. A decision of
deceptive is rendered if any individual question score is -3
or less or the grand total of both questions is -4 or less. A
decision of non-deceptive is rendered if the grand total of
both questions is +4 or more with a +1 or more at each
question.
Blasey's scores utilizing the three (3) point scale are +4
at Question A and +5 at Question B with a total score of +9.
Based upon this analysis, it is the professional opinion of
this examiner that Blasey's responses to the above relevant
questions are Not Indicative of Deception.
A second analysis was conducted utilizing a scoring
algorithm developed by Raymond Nelson, Mark Handler and
Donald Krapohl (Objective Scoring System Version 3) which
concluded ``No Significant Reactions--Probability these
results were produced by a deceptive person is .002.''
Truthful results, reported as ``No Significant Reactions,''
occur when the observed p-value indicates a statistically
significant difference between the observed numerical score
and that expected from deceptive test subjects, using
normative data obtained through bootstrap training with the
confirmed single issue examinations from the development
sample. Truthful results can only occur when the probability
of deception is less than .050.
Deceptive results, in which an observed p-value indicates a
statistically significant difference between the observed
numerical score and that expected from truthful persons, and
are reported as ``Significant Reactions.''
When the observed p-value fails to meet decision alpha
thresholds for truthful or deceptive classification the test
result will be reported as ``Inconclusive.'' No opinion can
be rendered regarding those results.
A third analysis was conducted utilizing a scoring
algorithm developed by the Johns Hopkins University Applied
Physics Laboratory (PolyScore Version 7.0) which concluded
``No Deception Indicated--Probability of Deception is Less
Than .02.''
One high school summer in 80's, I went to a small party in
the Montgomery County area. There were 4 boys and a couple of
girls. At one point, I went up a small stairwell to use the
restroom. At that time, I was pushed into a bedroom and was
locked in the room and rushed onto a bed. Two boys were in
the room. Brett laid on top of me and tried to remove my
clothes while groping me. He held me down and put his hand on
my mouth to stop me from screaming for help. His friend Mark
was also in the room and both were laughing. Mark jumped on
top of us 2 or 3 times. I tried to get out from under
unsuccessfully. Then Mark jumped again and we toppled over. I
managed to run out of the room across, to the bathroom and
lock the door. Once I heard them go downstairs, I ran out of
the house and went home.

Christine Blasey,
August 7, 2018.

Mr. BROWN. I yield the floor.
The PRESIDING OFFICER (Mr. Barrasso). Pursuant to rule IV, paragraph
2, the hour of 12 noon having arrived, the Senate having been in
continuous session since yesterday, the Senate will suspend for a
prayer from the Senate chaplain.

____________________