[Congressional Record Volume 164, Number 166 (Friday, October 5, 2018)]
[Senate]
[Pages S6699-S6701]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         ORDER FOR ADJOURNMENT

  Mr. McCONNELL. Mr. President, if there is no further business to come 
before the Senate, I ask that it stand adjourned under the previous 
order, following the remarks of Senator Coons.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Delaware.


                     Nomination of Brett Kavanaugh

  Mr. COONS. Thank you, Mr. President.
  I come to the floor to express my opposition to the nomination of 
Judge Kavanaugh to serve as Associate Justice of the U.S. Supreme 
Court.
  I come with a profound regret. I come today with profound regret that 
this body has transformed from one that historically confirms Supreme 
Court Justices with broad and bipartisan support to one in which rules, 
norms, and courtesies fall away to serve the objectives of the majority 
and one in which Justices are confirmed by the absolute narrowest of 
margins.
  I know I am not the only one to feel this way. We can simply wish for 
the bygone era of consensus to return, we can give speeches about 
bipartisanship with no hope of making progress, but to wish for it 
without doing the work of reaching across the aisle is empty talk 
without action, and as one who tries to inject some spirit of 
bipartisanship in what has been the most bitter and most divisive and 
most partisan fight I have seen in my 8 years here, I wanted to reflect 
for a moment before we close today on my views on the nomination of 
Judge Kavanaugh, the process that got us here and where we go next.
  First, in this process, in this nomination, I saw barrier after 
barrier placed in front of consensus and bipartisanship and the proper 
functioning of the Senate Judiciary Committee on which I serve. These 
barriers prevented us from fully and effectively performing the advice 
and consent function to which we are called by the Constitution. We 
have to do better. There needs to be a reckoning with all that went 
wrong here.
  I am sure that colleagues from the other side of the aisle may well 
have different views on exactly which steps or developments led to the 
sharply divided vote today and the heated and sharply divided hearing 
and proceedings of last week, and I welcome their input.
  But I thought today I should, for me, recount the course of this 
nomination. It was fraught from the beginning because the Senate 
Judiciary Committee majority used an unprecedented and partisan process 
to rush this nomination while blocking access to millions of pages of 
documents of Judge Kavanaugh's service in the White House, potentially 
relevant to our deliberations.
  For the first time since Watergate, the nonpartisan National Archives 
was cut out of the process for reviewing and producing the nominee's 
records, and Judge Kavanaugh's former deputy, who made his career 
representing Republican and partisan causes, was in charge of 
designating which documents this committee and the American people got 
to see.
  Nonetheless, the committee pressed forward, despite objections from 
the minority to Judge Kavanaugh's hearing. During that hearing, I was, 
frankly, disappointed. Judge Kavanaugh was not fully forthcoming when 
discussing his interpretation of the Constitution and responding to 
timely and important questions about his record.
  I asked Judge Kavanaugh why he repeatedly criticized Morrison v. 
Olson, a 30-year-old precedent about a now-extinct statute but a 30-
year-old Supreme Court precedent holding that Congress can create an 
independent counsel with authority to investigate the President and 
whom the President cannot just fire on a whim.
  I asked whether he still believes what he said in 1998, that a 
President can fire at will a prosecutor criminally investigating him. 
On these and other critical questions of Presidential power, Judge 
Kavanaugh would not respond. He would not tell me whether he believes 
all executive branch officials must be removable at will by the 
President, according to his view of Executive power.
  I asked whether critical rights like rights of access to 
contraception, to abortion, the right to marry the person you love 
would be protected under the test to evaluate substantive due process 
that he has championed. Judge Kavanaugh has repeatedly cited a test for 
substantive due process that would limit the protection of liberty and 
interest to rights ``deeply rooted in our Nation's history and 
tradition,'' but he would not confront the consequences of applying 
this test going forward.
  Judge Kavanaugh would also not condemn President Trump's attacks on 
the Federal Judiciary and the President's suggestions that the Justice 
Department should consider politics when making prosecutorial 
decisions. I asked Judge Kavanaugh about a comment he made on a panel 
at Georgetown when he said: ``If the President were the sole subject of 
a criminal investigation, I would say, no one should be investigating 
that.'' In fact, Judge Kavanaugh testified he didn't say that, but I 
reviewed the record.
  I followed up with a series of questions for the record to get 
additional information I think the American people should know and to 
give Judge Kavanaugh a chance outside of our brief exchanges in the 
confirmation process to explain his suggestions that perhaps I had 
misquoted him. Unfortunately, I instead received pages of nonanswers.
  When I asked Judge Kavanaugh specific questions about his criticism 
of Morrison v. Olson, he simply referred to his prior testimony and 
said he had ``nothing further to add here.'' He would not explain how 
his proffered test for substantive due process is consistent with the 
Court's landmark marriage equality decision by Justice Kennedy in 
Obergefell.
  After the hearing was over, I learned of Dr. Ford's allegations that 
Judge

[[Page S6700]]

Kavanaugh had assaulted her in high school. Dr. Ford courageously 
presented her account to the committee and the country. She gave 
compelling testimony about a terrifying sexual assault she experienced 
at age 15. She recounted Mark Judge and Brett Kavanaugh, stumbling 
drunk, pushing into her bedroom, locking the door, laughing, and 
turning up the music to muffle her screams.
  Dr. Ford testified with 100 percent certainty that the person who 
assaulted her was the judge whose nomination we were considering, whom 
she had known through acquaintances and socialized with on many 
occasions.
  Dr. Ford had borne the pain of this attack alone for decades, but 
over time, she told several people she trusted. She told her now-
husband in 2002, she told therapists in 2012 and 2013, and friends in 
2013, 2016, 2017, and 2018. She proffered their names in the subsequent 
FBI investigation, but they were never questioned.
  Importantly, Dr. Ford wasn't the only person to come forward during 
this period. Her testimony gave courage to countless others to confront 
their own trauma and share their own pain so that all of us can 
understand.
  As I just shared in a bipartisan conversation with colleagues at the 
end of this divisive vote, we have all had the experience of friends 
and colleagues, classmates and neighbors coming forward with stories 
long concealed--whether out of shame or fear; whether out of a 
certainty they would not be believed; whether out of pressures real, 
recent, or long gone--and we all have work to do together.
  Inspired by these survivors, I will never forget the experiences they 
have shared, and I will not stop in efforts to make certain this body, 
this Senate, acts in ways that respect them and their suffering and 
their experiences.
  When Dr. Ford came forward to speak to all of us and the American 
people, I will remind you she had nothing to gain and a lot to lose. 
She came forward to testify about her assault, and I am going to use 
her own words to explain why, as she said to us: ``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.''
  Civic duty to tell the truth.
  What always struck me was how Dr. Ford came forward to voice concerns 
before Judge Kavanaugh was nominated by the President. She reached out 
to her Congresswoman and anonymously to the Washington Post when his 
name was on a short list, but he had not yet been chosen.
  Later, last Thursday, after Dr. Ford's testimony, Judge Kavanaugh 
came forward to offer an aggressive, full-throated, angry denunciation 
of her accusations. Even recognizing the understandable passion of one 
who believes himself to be defending his honor against unjust assault, 
I found his prepared opening statement and combative exchanges with my 
colleagues deeply troubling. As a sitting circuit court judge, he 
refused to answer fair and relevant questions, instead throwing them 
back in the faces of two of my colleagues.
  He was not candid with the committee about his own history of 
drinking and aggressive behavior. To quote an editorial recently 
published by three college classmates:

       Telling the truth, no matter how difficult, is a moral 
     obligation for our nation's leaders. No one should be able to 
     lie their way onto the Supreme Court. Honesty is the glue 
     that holds together a society of laws. Lies are the solvent 
     that dissolves those bonds.

  They stated: ``Brett lied under oath while seeking to become a 
Supreme Court Justice.''
  Most concerning of all to me, Judge Kavanaugh broke his own stated 
rule of staying three ZIP Codes away from politics. In his sharply 
worded and partisan exchange with Senators, he accused Democrats of 
``replacing advice and consent with search and destroy,'' of 
``Borking'' him, of engaging in some sort of revenge plot on behalf of 
the Clintons, and of a calculated political hit. He looked us in the 
eye and told us: ``What goes around comes around.''
  Retired Justice John Paul Stevens explained he changed his mind about 
Judge Kavanaugh's fitness to serve because his hearing performance 
``demonstrated a potential bias.''
  I share the concern of my colleague Senator Murkowski's that after 
last Thursday, the ``appearance of impropriety has become 
unavoidable.''
  Following the intense and emotional testimony of last Thursday, I am 
grateful that we took a week pause so that the FBI could conduct an 
investigation into credible allegations of sexual assault, and I remain 
thankful to my colleague Senator Flake for supporting my call for an 
FBI investigation. It showed courage on his part.
  Unfortunately, regrettably, the investigation that ensued had a scope 
so narrow, so cursory, so incomplete that it did not remove the cloud 
hanging over Judge Kavanaugh's nomination. Dozens of witnesses who 
could have corroborated Dr. Ford's and Ms. Ramirez's accounts were 
never contacted and never questioned, despite their contacts and names 
being handed to FBI agents and despite the efforts of many offices in 
the Senate to forward their information.
  I fear that with the confirmation of Judge Kavanaugh to the Supreme 
Court today, we will look back on this moment not only as a moment of 
raucous turmoil for the Senate but as a moment where the norms and 
traditions of blind justice, a justice blind to partisanship, will have 
slipped away.
  The Court is critical to the rule of law in our country, and I am 
deeply concerned that its legitimacy will be harmed with the addition 
of an explicitly partisan Justice.
  The Supreme Court plays a pivotal role in defining the scope of the 
President's power in determining whether the President is above the 
law.
  The Supreme Court impacts essential rights enshrined in our 
Constitution--the rights to privacy, intimacy, marriage, contraception, 
abortion, the freedom to worship as we choose, the ability to 
participate in our democracy as full and equal citizens, and the 
promise of equal protection of the laws. There are so many more I could 
list. These issues are not academic, and they are under assault. There 
are cases proceeding to the Supreme Court now that are relevant to so 
many of these concerns.
  There are cases challenging the constitutionality of the ongoing 
special counsel investigation now. A lawsuit that is aimed at striking 
down the Affordable Care Act is proceeding in Texas now, and the Trump 
administration is refusing to defend protections for people with 
preexisting conditions. A challenge to restrictive regulations for 
abortion clinics--regulations aimed at putting clinics out of 
business--is headed to the Supreme Court now. Right now, there are also 
lawsuits across the country in which LGBT Americans are challenging 
discrimination they have faced in employment, in schools, and in 
government service.
  Our Supreme Court should be a bulwark against violations of law, 
deprivations of freedom, and abuses of power. Yet we may now enter a 
perilous time when the Court will, in fact, be shifting far right and 
will end up issuing decision after decision on clearly partisan lines--
significantly more conservative than the majority of Americans at a 
time when a President elected by a minority of Americans will have 
appointed the Justice with a deciding vote, after his confirmation, by 
the narrowest of margins. The Justice who has been confirmed today is 
one who, in his conduct, will lead some to fairly doubt his 
impartiality. He will likely play a central role for decades in 
charting a course for interpreting our laws and rights and freedoms.
  I hope and pray that I am wrong, that my interpretation of his 
writings, of his speeches, and of his opinions is flawed, that the 
apology and retraction he offered is genuine, in an opinion that was 
published yesterday, about his partisan screed in his confirmation 
hearing, and that his behavior as a Justice will put to rest all of the 
concerns I have raised and that he will be a model of moderation and 
balance. Yet I have profound doubts and grave concerns about Judge 
Kavanaugh's ability to serve on the Supreme Court in an evenhanded and 
nonpartisan way.
  As I conclude, let me make a personal plea to those who are listening 
and those who may watch: that we in the Senate, in going forward, must 
address the flaws and weaknesses of the process that got us to today 
and that we must do better. Simply retreating to our partisan 
cloakrooms when we are faced with our Nation's challenges will not 
solve them.

[[Page S6701]]

  If we do not work to repair this institution, there will be nothing 
left worth saving. If this Senate does not work, our Congress does not 
work. If our Congress does not work, our Nation does not work. If our 
Nation does not work, we teach the world that democracy is not the 
model to follow. If we, simply, reflect the bitter partisanship that is 
growing and festering across our Nation--fueled by some here in 
Washington--we will fail.
  We in the Senate must, instead, follow the Founders' vision for us 
and, in fact, lead the country to common ground, to consensus, and to a 
better future. We should, therefore, work together to get back to a 
place where it is possible for Supreme Court Justices to be confirmed 
with broad and bipartisan majorities, where it is possible to legislate 
together on the issues compelling to our time, and where it is possible 
to hear each other and to hear the concerns of all of our people.
  I hope my colleagues will hear my remarks today as an invitation to 
work together to face this challenge. We owe nothing less to the 
Supreme Court, to our country, and to our people.
  I yield the floor.

                          ____________________