EXECUTIVE SESSION; Congressional Record Vol. 164, No. 166
(Senate - October 05, 2018)

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[Pages S6559-S6628]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

                           EXECUTIVE CALENDAR

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

[[Page S6560]]

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

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

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

[[Page S6561]]

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

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

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

[[Page S6562]]

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


                   Recognition of the Minority Leader

  The ACTING PRESIDENT pro tempore. The Democratic leader is 
recognized.
  Mr. SCHUMER. Madam President, from start to finish, President Trump's 
nomination of Judge Brett Kavanaugh to the U.S. Supreme Court will go 
down as one of the saddest, most sordid in the long history of the 
Federal judiciary.
  The well was poisoned from the outset when President Trump selected 
Judge Kavanaugh from a list of names preapproved by hard-right special 
interest groups for whom the national interest is a trifling concern 
compared to repealing Roe v. Wade, cutting people's healthcare, and 
achieving a partisan majority on the Supreme Court. The rot worsened 
when the Republican majority on the Judiciary Committee shielded the 
bulk of Judge Kavanaugh's records from the public, discarding decades 
of bipartisan precedent and thwarting norms of transparency and 
fairness. Finally, the dam broke under the weight of credible 
allegations that Judge Kavanaugh committed a sexual assault in high 
school.
  In 2018, the Republican majority conducted a hearing that made the 
Anita Hill hearings in 1991 look fair by comparison. At this hearing, 
there were no corroborating witnesses on either side and no independent 
investigation of the facts to inform the questioning. They even hired 
an outside counsel to put a witness, Dr. Ford, on trial. Only at the 
eleventh-hour urging of breakaway Members of their caucus, Republicans 
submitted, reluctantly, to a 1-week investigation of the allegations--
an investigation which was then severely circumscribed by the White 
House.
  Our Republican friends blame us for this process. They are always 
finding a straw man. But nothing could be further from the truth. 
First, they blame us for delay, knowing full well that Majority Leader 
McConnell has complete control of when nominees are brought to the 
floor. Leader McConnell could have moved this nominee 2 weeks ago or 1 
week ago. Democrats had no say--and don't--when it comes to what is 
scheduled for floor debate. But in each case, Leader McConnell couldn't 
move the nominee forward because he was blocked by fellow Republicans--
not Democrats--from moving forward. When it comes to complaining about 
delay, two words never come from our Republican friends' lips: 
``Merrick Garland.''
  Republicans are also saying that we engaged in ``a smear campaign'' 
or the ``politics of personal destruction'' with this nomination. In 
reality, again, they are using Democrats as a straw man, because what 
they are really talking about is what Dr. Ford said. Democrats did not 
induce her to come forward; her conscience did. Are our Republican 
friends accusing Dr. Ford and her deeply held memories of what happened 
to her of a smear campaign? Are they accusing Dr. Ford of a smear 
campaign, of engaging in the politics of personal destruction? Because 
that is who they are actually blaming. They are decrying her testimony 
and then trying to blame Democrats. I don't blame them--they have a 
flawed nominee. They don't want the focus on the nominee.
  When future Americans look back at these proceedings, let them draw 
no lessons from the Senate's conduct here. Let them look back on this 
chapter as the shameful culmination of the scorched-earth politics 
practiced by the hard right in America--people who will stop at nothing 
to entrench an advantage on our Nation's courts. Let the confirmation 
process for Judge Kavanaugh be recorded as a sorry epilogue to the 
brazen theft of Justice Scalia's seat, the ignominious end of 
bipartisan cooperation and consultation on the confirmation of Supreme 
Court Justices. And for what? For whom were Senate Republican leaders 
willing to discard all semblance of fairness to confirm? Judge Brett 
Kavanaugh--certainly a product of an elite education but also someone 
with a hard-right, conservative jurisprudence, far, far away from what 
average Americans believe.
  Why most Democrats opposed his nomination at the outset feels like 
ancient history now, but let's not forget that, most importantly, we 
strongly disagree with a number of Judge Kavanaugh's views. He is 
deeply skeptical of unenumerated rights, including a woman's right to 
make fundamentally private decisions about her medical care. He is 
deeply skeptical of the government's role in protecting Americans with 
preexisting conditions. He is deeply skeptical of nearly all rules and 
regulations that protect consumers, workers, and the environment.
  The flashing red warning sign at the center of Judge Kavanaugh's 
jurisprudence is his views on Executive power and accountability. 
Somehow, this conservative judge and scholar of the Constitution sees 
at the heart of American democracy a President-cum-King; an Executive 
who is unaccountable to the laws he is sworn to uphold; a head-of-state 
who, while in office, should be beyond the reach of subpoenas, criminal 
investigations, or civil investigations.
  This moment in American history demands deep skepticism about Judge 
Kavanaugh's views on Executive power, nominated as he was by an 
Executive who disdains the constraints of his office and who is, at 
this very moment, the apparent subject of investigations his Supreme 
Court nominee believes should be invalid.
  I met with Judge Kavanaugh for almost 2 hours, and I asked him about 
all of those issues. His answers were constantly evasive and utterly 
unsatisfactory. It was deja vu all over again in the first round of 
hearings, when Judge Kavanaugh deliberately avoided talking about his 
views on Roe, healthcare, Presidential accountability, and more. There 
was no legal reason, rule, or logic that prevented him from being clear 
and saying what he thought. He was evasive because he knows that his 
views are deeply at odds with the progress America has made over the 
last half century of jurisprudence and at odds with what most Americans 
believe. His performance was not only unfair and frustrating to the 
Senate, it was unfair to the American people. When a nominee refuses to 
disclose their views, chances are you have a nominee whose views are 
far outside the mainstream of America, whether they be far right or far 
left.
  My colleagues on the other side of the aisle may not have as grave a 
concern about these views as we do, but let no American be surprised if 
Judge Kavanaugh becomes a decisive vote to restrict the rights and 
privileges of the American people, while stretching the bounds of 
privilege for the current occupant of the White House.
  Judge Kavanaugh's nomination ultimately does not only encompass 
questions of ideology or credentials but questions of character. Here 
again, Judge Kavanaugh falls woefully short of what Americans expect 
and deserve

[[Page S6563]]

in a Supreme Court Justice. He has repeatedly misled the Senate about 
his involvement in some of the most serious controversies of the Bush 
administration, including warrantless wiretapping of American citizens, 
our policy against torture, the theft of electronic records from 
Democratic Senators, and his involvement in the nomination of very 
controversial judges. Faced with credible allegations of various types 
of misconduct, Judge Kavanaugh's credibility was again tested, and he 
continued to dissemble and even prevaricate about easily refuted facts.
  Beyond the issue of credibility, Judge Kavanaugh presented to the 
Senate the bitterest partisan testimony I have ever heard coming from a 
candidate seeking the Senate's approval, whether they be for the bench 
or the executive branch.
  There are many who think that what happened when Judge Kavanaugh was 
17 years old should not be dispositive. Even if you believe that, his 
actions at age 53 in terms of demeanor, partisanship, and, above all, 
credibility, should be dispositive. Judges at every level of the 
Federal bench should be held to the highest standard of ethics and 
moral character. Judges at every level should be judicious and credible 
and independent but especially--especially--on the Supreme Court.
  I do not see how it is possible for my colleagues to say with perfect 
confidence that Judge Kavanaugh has the temperament, independence, and 
credibility to serve on the U.S. Supreme Court. So I ask my colleagues 
on the other side of the aisle: Why Judge Kavanaugh? There is no 
dictate that you have to march blindly forward with a nominee when 
there are others available to you. There are many judges whom I am sure 
conservatives would be happy to have on the Court. I would remind my 
colleagues, the seat that Brett Kavanaugh aspires to fill was held by a 
Justice who assumed the Bench after one nominee was voted down by the 
Senate and a second nominee withdrew his nomination. But the Republican 
majority has pressed forward blindly on Judge Kavanaugh, even when 
brave women came forward to speak truth to power. Why? For what cause? 
For the sake of winning? That is not reason enough.

  My colleagues on the other side, if you have doubts about Judge 
Kavanaugh's credibility, about his ability to tell the truth, about his 
ability to be impartial and nonpartisan--no matter what you think of 
his jurisprudence or what he may or may not have done in high school 
and college--you should not vote to confirm him to the Supreme Court.
  So my friends, Democratic and Republican, for all the controversy, 
all the heavyhandedness of the process, all the hyperbole and 
vilification of both sides, there is always hope that the Senate can 
save itself. We can salvage some decency here at the end.
  If Judge Kavanaugh is rejected, President Trump will select another 
nominee--likely right-of-center, probably not to my liking but without 
the cloud that hangs over this nominee--and we can proceed to consider 
that nominee in a much less bitter, much better, less partisan way. A 
bipartisan majority of Senators, considering fully the weight of Judge 
Kavanaugh's testimony, record, credibility, trustworthiness, and 
temperament, considering fully the heartbreaking testimony of Dr. 
Christine Blasey Ford, can vote to reject Judge Kavanaugh's nomination 
and ask the President to send the Senate another name.
  For the sake of the Senate, of the Supreme Court, and of America, I 
hope, I pray, my colleagues will do so.
  I yield the floor.


                   Recognition of the Majority Leader

  The ACTING PRESIDENT pro tempore. The majority leader is recognized.
  Mr. McCONNELL. Madam President, it was 88 days ago that President 
Trump announced his nomination of Judge Brett Kavanaugh to fill the 
current vacancy on the Supreme Court.
  Judge Kavanaugh is a nominee of the very highest caliber, a brilliant 
legal mind and an accomplished jurist with a proven devotion to the 
rule of law. Today, the Senate has the opportunity to advance his 
nomination. Every one of us will go on record with one of the most 
consequential votes you ever cast in the Senate.
  The stakes are always high for a Supreme Court nomination, but, 
colleagues, the extraordinary events of recent weeks have raised them 
even higher this time. When we vote later this morning, we will not 
only be deciding whether to elevate a stunningly well-qualified judge 
to our highest Court. Not anymore. Not after all this. The Senate will 
also be making a statement.
  We will either state that partisan politics can override the 
presumption of innocence, or we will reaffirm that in the United States 
of America, everyone is innocent until proven guilty.

  We will either state that facts and evidence can simply be brushed 
aside when politically inconvenient and signal that media bullying and 
mob intimidation are valid tactics for shaping the Senate and that the 
mob can attack and the Senate will cave, or we will stand up and say 
that serious, thoughtful, fact-based deliberation will still define 
this body.
  We will either give notice that totally uncorroborated allegations 
are now officially enough to destroy an American's life, or we will 
declare that our society cannot, must not, will not set the bar so low.
  Today is a pivotal day in the nomination process of this excellent 
judge, but it is a pivotal day for us here in the Senate as well. The 
ideals of justice that have served our Nation so well for so long are 
on full display.
  So let's step back and sample a few of the choice moments that the 
Senate and the American people have been treated to during the 
disgraceful--absolutely disgraceful--spectacle of the last 2 weeks.
  The very night Judge Kavanaugh was announced as the President's 
choice, we heard the junior Senator from Oregon declare that this 
nominee would ``pave the path to tyranny.'' His audience? Crowds of 
far-left protesters, still filling in the blanks on their picket signs. 
They weren't quite sure who the nominee was going to be yet.
  We heard the junior Senator from New Jersey describe Judge 
Kavanaugh's nomination as a great moral struggle in which there are 
just two camps: ``You're either complicit in the evil . . . or you are 
fighting against it.''
  More recently, we heard the junior Senator from Hawaii argue that her 
personal disagreement with Judge Kavanaugh's judicial philosophy 
meant--now, listen to this--he deserved less of a presumption of 
innocence when it came to allegations of misconduct. If you agree with 
her, you are not entitled to the presumption of innocence when it comes 
to allegations of misconduct. That is from a member of the Judiciary 
Committee? That is the definition of ``due process''? Apparently, you 
get due process only if you agree with her.
  Even more recently, we saw the junior Senator from Rhode Island hold 
forth with great confidence--great confidence--offering his expert 
interpretations of goofy jokes in a high school yearbook from the early 
1980s. That was incredibly enlightening. Innocent jokes? Beer-drinking 
references? Oh, no. Our colleague was quite positive there must be some 
other hidden or sinister meanings at play--until, of course, a number 
of Judge Kavanaugh's classmates set him straight earlier this week.
  So stop and consider these snapshots. The absurdity. The absurdity. 
The indignity. This is our approach to confirming a Supreme Court 
Justice? This is the Senate's contribution to public discourse?
  Before the ink had dried on Justice Kennedy's retirement, our 
Democratic colleagues made it perfectly clear what this process would 
be about: delay, obstruct, and resist.
  Before the ink had dried on Judge Kavanaugh's nomination, colleagues 
across the aisle--including Democratic members of the Judiciary 
Committee--were racing to announce they had made up their minds and 
were totally opposed to his confirmation.
  Mere hours after Judge Kavanaugh was nominated, my friend the 
Democratic leader promised--``I will oppose him with everything I've 
got,'' he said hours after he was nominated. It was thus abundantly 
clear that his No. 1 political goal was to defeat the nomination by any 
means necessary.
  It was right there from the beginning, a clear declaration, plain as 
day: Nothing--nothing--could get most

[[Page S6564]]

Democrats to consider this nominee with an open mind. It would be 
delaying tactics, obstruction, and the so-called resistance until the 
final vote was called.
  For a few weeks, their efforts played out along the lines that have 
sadly become somewhat ordinary around here. There were excuses for 
delay. Those fell flat. There were gross distortions of Judge 
Kavanaugh's record that were batted down by outside fact-checkers. 
There were all the usual phony, apocalyptic pronouncements that are 
shouted whenever a Republican President dares to nominate a Supreme 
Court Justice. It happens every time. Hostile to women. Hostile to 
vulnerable people. Hostile to workers. The same old tricks. The same 
old playbook. But here was the problem: The old plays weren't working. 
The distortions were being literally drowned out by the facts.
  Senators received and reviewed more pages of background materials on 
Judge Kavanaugh's nomination than for every previous Supreme Court 
nomination combined. We read Judge Kavanaugh's 12-year record of 
judicial rulings from our Nation's second highest court--300-plus 
opinions. We heard sworn testimony and written accounts from hundreds 
of character witnesses from all stages of Judge Kavanaugh's life and 
career. The picture painted by these facts was nothing like the 
caricature--nothing like the caricature.
  So it was clear that the old tactics weren't working and weren't 
going to get the job done. The resistance demanded more. Try something 
new, they said. Well, we all know what happened next. Uncorroborated 
allegations of the most sensitive, most serious sort were quickly 
sharpened into political weapons.
  One such allegation, shared by Dr. Ford in confidence with the 
Democrat side of the Judiciary Committee, somehow mysteriously found 
its way into the press. Chairman Grassley immediately set out on a 
sober, focused search for the truth. The committee collected testimony, 
organized a new hearing, and most recently asked for a supplemental FBI 
background investigation, Judge Kavanaugh's seventh--seventh--FBI 
investigation.
  By any fair standard, the facts--the actual facts--proved to be 
straightforward: no corroborating evidence. None--none--was produced to 
support any of the allegations leveled against Judge Kavanaugh. There 
was no corroborating evidence from the FBI inquiry or from anywhere 
else. Nothing.
  Well, that wasn't enough for our Democratic colleagues, of course. 
The facts were not exactly the point. After all, we sort of get it by 
now. When the very FBI investigation for which they had been clamoring 
turned up no new evidence, the Democrats moved the goalposts yet again.
  I believe the latest story is that the whole investigation is 
invalid--listen to this--because individuals who had only recently been 
told secondhand or thirdhand about nearly 40-year-old allegations 
weren't treated as essential witnesses.
  Let me say that again. The latest story is that the whole 
investigation is invalid because individuals who had only recently been 
told secondhand or thirdhand about nearly 40-year-old allegations 
weren't treated as essential witnesses--never mind that they didn't 
actually witness anything. They didn't witness anything.
  So let's be clear. These are not witnesses. These are people 
supposedly in possession of hearsay that they first heard 35 years 
after the supposed fact. What nonsense.
  The people whom Dr. Ford claimed were witnesses have spoken with the 
FBI. We know that because they, through their attorneys, put out public 
statements saying so. What we know now is what we knew at this time a 
week ago: There is absolutely no corroborating evidence for these 
allegations--the same thing we heard a week ago. If there were, you bet 
we would have heard about it, but there isn't.

  Notwithstanding that, the leak of Dr. Ford's letter--in violation of 
her privacy and against her wishes--opened the floodgates. The feeding 
frenzy was full-on. The weaponization of her letter by the left led to 
a torrent of other, equally uncorroborated allegations. They were 
dumped on Judge Kavanaugh and his family, and, breathlessly, the media 
seized on them--the more outlandish, the better.
  Americans were informed that Judge Kavanaugh masterminded violent 
drug gangs as a young teenager, until that accuser walked her story 
back. We were informed that Judge Kavanaugh beat someone up on a boat 
in a Rhode Island harbor, until that accuser totally recanted. We heard 
another tall tale of physical assault, until that account was 
thoroughly debunked by a sitting Federal judge. Oh, and, yes, we were 
informed that juvenile jokes in his high school yearbook were actually 
sinister secret references.
  Oh, the Keystone Kops were on the case, and Senate Democrats cheered 
them on. They read parts of this uncorroborated, unbelievable mudslide 
into the Senate Record. They cited them in an unofficial letter, 
demanding that Judge Kavanaugh's nomination be withdrawn.
  Were they true? That was quite beside the point, so long as they were 
convenient. Every effort was made to ensure the fact-free verdict of 
the mob and the media would win out over the actual evidence; make sure 
the mob prevails. The uncorroborated mud and the partisan noise and the 
physical intimidation of Members in the Senate will not have the final 
say around here. The Senate will have the final say.
  We are almost at the end of the runway. The crosswinds of anger and 
fear and partisanship have blown strong these past weeks. They have 
harmed a good man and his family. They have tarnished the dignity of 
this institution, but all of it can end today. The time has come to 
vote. The Senate stands on the threshold of a golden opportunity.
  We have the opportunity to advance the nomination of an incredibly 
well-qualified and well-respected jurist to a post that demands such 
excellence. We have the opportunity to put Judge Brett Kavanaugh on the 
Supreme Court, where his distinguished service will make us and our 
Nation proud for years to come. We have the opportunity to do even 
more.
  Today, we can send a message to the American people that some core 
principles remain unfettered by the partisan passions of this moment. 
Facts matter. Fairness matters. The presumption of innocence is 
sacrosanct. The Senate has turned its back on these things before but 
never for long and never without deep regret.
  This institution does not look back proudly on the era of Joseph 
McCarthy nor on any of the other times when the politics of personal 
destruction poisoned its judgment. No, the Senate looks back on those 
things with shame and with the conviction that we cannot go down that 
road again. We know the Senate is better than this. We know the Nation 
deserves better than this.
  By confirming Judge Brett Kavanaugh on the Supreme Court, this 
brilliant jurist will be charged with upholding the rule of law and 
honoring American justice. We must hold ourselves to that very same 
standard. We must seize the golden opportunity before us today, to 
confirm a Supreme Court Justice who will make us proud, and to reaffirm 
our own commitment to the justice that every single American deserves.
  The ACTING PRESIDENT pro tempore. As a reminder to our guests in the 
Galleries, expressions of approval or disapproval are not permitted in 
the Senate Galleries.


                             Cloture Motion

  The ACTING PRESIDENT pro tempore. Pursuant to rule XXII, the Chair 
lays before the Senate the pending cloture motion, which the clerk will 
state.
  The senior assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the nomination 
     of Brett M. Kavanaugh, of Maryland, to be an Associate 
     Justice of the Supreme Court of the United States.
          Mitch McConnell, Orrin G. Hatch, Thom Tillis, Roger F. 
           Wicker, Tim Scott, Deb Fischer, Roy Blunt, Cindy Hyde-
           Smith, John Cornyn, Johnny Isakson, Lamar Alexander, 
           John Boozman, Joni Ernst, Mike Crapo, John Thune, John 
           Barrasso, Pat Roberts.

  Mr. McCONNELL. I ask unanimous consent that the mandatory quorum call 
be waived.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Without objection, it is so ordered.

[[Page S6565]]

  By unanimous consent, the mandatory quorum call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Brett M. Kavanaugh, of Maryland, to be an Associate 
Justice of the Supreme Court of the United States shall be brought to a 
close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The senior assistant legislative clerk called the roll.
  The yeas and nays resulted--yeas 51, nays 49, as follows:

                      [Rollcall Vote No. 222 Ex.]

                                YEAS--51

     Alexander
     Barrasso
     Blunt
     Boozman
     Burr
     Capito
     Cassidy
     Collins
     Corker
     Cornyn
     Cotton
     Crapo
     Cruz
     Daines
     Enzi
     Ernst
     Fischer
     Flake
     Gardner
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Hyde-Smith
     Inhofe
     Isakson
     Johnson
     Kennedy
     Kyl
     Lankford
     Lee
     Manchin
     McConnell
     Moran
     Paul
     Perdue
     Portman
     Risch
     Roberts
     Rounds
     Rubio
     Sasse
     Scott
     Shelby
     Sullivan
     Thune
     Tillis
     Toomey
     Wicker
     Young

                                NAYS--49

     Baldwin
     Bennet
     Blumenthal
     Booker
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Coons
     Cortez Masto
     Donnelly
     Duckworth
     Durbin
     Feinstein
     Gillibrand
     Harris
     Hassan
     Heinrich
     Heitkamp
     Hirono
     Jones
     Kaine
     King
     Klobuchar
     Leahy
     Markey
     McCaskill
     Menendez
     Merkley
     Murkowski
     Murphy
     Murray
     Nelson
     Peters
     Reed
     Sanders
     Schatz
     Schumer
     Shaheen
     Smith
     Stabenow
     Tester
     Udall
     Van Hollen
     Warner
     Warren
     Whitehouse
     Wyden
  (Disturbance in the Visitors' Galleries.)
  The ACTING PRESIDENT pro tempore. As a reminder to our guests in the 
Galleries, expressions of approval or disapproval are not permitted in 
the Senate Galleries.
  On this vote, the yeas are 51, the nays are 49.
  The motion is agreed to.
  The ACTING PRESIDENT pro tempore. The Senator from Texas.
  Mr. CORNYN. Madam President, as the world knows now, we just held a 
successful cloture vote on the nomination of Brett Kavanaugh to become 
the next Associate Justice on the U.S. Supreme Court.
  I am glad we were successful in closing off debate. We now know that 
under the Senate rules, 30 hours are available for Senators to debate, 
and I am sure there will be many Senators who will be coming to the 
floor and offering their thoughts.
  To my mind, what the Senate just voted for was to end the games, the 
character assassination, and the intimidation tactics that 
unfortunately have characterized so much of this confirmation process. 
Our vote today was important, not only because it will allow us to move 
forward and conclude this confirmation process, but it was important 
because it showed the Senate will not be intimidated. We will not be 
bullied by the streams of paid protesters and name-calling by the mob. 
We will not be complicit in the attempts to tarnish a good man's 
character, destroy his career, and further delay this confirmation 
process--a constitutional process of advice and consent.
  What has been particularly galling on the part of some of our 
colleagues over the last 24 hours is the fact that the FBI 
investigation they called for, they are virtually ignoring or, in some 
cases, disparaging. They called for that supplemental background 
investigation just last Friday. Let's all remember what our friend the 
senior Senator from Minnesota said last weekend. He said: Let's give 
this 1 week. Well, that is what we gave them. The junior Senator from 
Delaware asked for the same period of time at the hearing--a 1-week-
long FBI investigation.
  Our colleagues got what they asked for, and unfortunately, since they 
had already decided to vote against the nomination, they must have been 
somewhat disappointed that the supplemental background investigation 
came up with no new information, no corroboration at all.
  I actually think, in some ways, our colleagues who called for a 1-
week delay have done us a favor because every lead that could be 
followed has been followed and exhausted. As the majority leader was 
saying earlier, in America, under our constitutional system, where we 
don't presume you are guilty and require you to prove your innocence 
and where we believe in due process of law, I think the FBI 
investigation was a useful way to demonstrate to the American people 
that none of these allegations that had been made against Judge 
Kavanaugh of sexual misconduct has been proven.
  It also, I think, gives us a chance to pivot from what has been a 
shameful and disgraceful confirmation process. If this is the new norm 
for the Senate--that somebody could be denied a confirmation based on 
an unproven allegation--I can't imagine people would be willing to 
subject themselves to that in the future. It would be a dark day for 
the Senate, for the United States, and for our system of justice that 
believes in a fair process and a constitutional presumption of 
innocence. When an allegation is made, the person making that 
allegation actually has to come forward with some evidence.
  A number of Senators--actually, it was a bipartisan consensus--wanted 
the FBI to conduct a limited investigation into current, credible 
allegations that were pending. They wanted the FBI to interview 
individuals like Mark Judge, who had already offered a sworn statement 
under penalty of felony, and others who may have had information who 
were identified by Dr. Ford as being present on the day this alleged 
activity took place. There was no confirmation. There was no 
corroboration.
  In fact, there was a refutation. The people she said were there and 
could be witnesses to what happened said: I have no knowledge of that.
  Dr. Ford's best friend, Leland Kaiser, said: I don't even know Brett 
Kavanaugh. I never met him.
  Well, we have all had an opportunity to read the confidential report. 
We have seen who was interviewed, what they were asked. Any doubts 
people may have had should now have been put to rest by what the 
contents reveal. These fantasies about Judge Kavanaugh being some sort 
of serial high school or college predator have been exposed as only 
that--myths not based on fact. There is no reliable evidence, 
whatsoever, to support any of these baseless allegations against Judge 
Kavanaugh.
  As we know, this wasn't exactly designed to be a truth-finding 
process. This wasn't a search for the truth. Our colleagues across the 
aisle already made up their mind a long time ago, some even before 
Judge Kavanaugh had been nominated. This was more of, as the majority 
leader said earlier today, not a search for the truth but a search-and-
destroy mission.
  Obviously, as they continue to move the goalposts, calling for more 
delays, more investigations, there have been seven background 
investigations by the FBI of Judge Kavanaugh during his public service. 
The FBI talked to more than 150 witnesses. Don't you think, if there 
were anything to these outrageous allegations, some of that would have 
come up at some point in the seven FBI background investigations that 
have been conducted?
  But our colleagues across the aisle continue to resist, putting a 
definitive end to this process and unfortunately caring little, if any, 
about the reputation of somebody who has demonstrated his outstanding 
qualifications and his commitment to public service. I think some of 
these attacks have become exhausting, politically exhausting, quite 
frankly.
  Our colleagues don't realize what they have unleashed when Senators 
get coat hangers mailed to their home, paid protesters show up on their 
doorstep or at their office or they are accosted in the Halls of the 
U.S. Congress. These paid protesters reportedly, once they get 
arrested, actually make more money from their funders than they do if 
they don't get arrested. That is what has been unleashed.
  Chairman Grassley called it mob rule, and that is exactly right--
where the Judiciary Committee, during the first confirmation hearing 
for Judge Kavanaugh, Senators said: I am breaking the rules. I am 
releasing committee confidential information. I know the rules prohibit 
me from doing that--and they don't care.

[[Page S6566]]

  If there are no rules and there are no norms and if we don't have 
enough respect for this institution and the people whose lives we 
touch, this is what gets unleashed.
  I feel bad for Dr. Ford, in particular. She wanted none of this 
three-ring circus. She sent a letter to the ranking member and asked 
that her identity remain confidential, only to find, after the first 
confirmation hearing, that it was leaked to the press. Then the press 
came to talk to her, and I guess she figured she had no other recourse 
but to actually tell her story to the press once her wishes were 
violated. She didn't consent to that. She didn't authorize the release 
of that confidential letter to the press, but that is what happened.
  When we gave her an opportunity to have a bipartisan, professional 
investigation, to have staff go out to California and interview her 
confidentially, she said: Nobody explained to me that was an option. 
Well, the lawyers that the ranking member referred her to apparently 
didn't even tell their own client she had the opportunity to avoid this 
three-ring circus and the embarrassment associated with it by doing 
something confidentially.
  That is how the Judiciary Committee ordinarily operates when 
allegations are made. They are investigated by committee staff or by 
the FBI--actually by both--but that didn't happen here until after this 
mob rule unleashed what we have seen here in the last few weeks.
  We know, when Dr. Ford sent her letter to the ranking member, it 
wasn't shared with the FBI initially. It wasn't shared with Judiciary 
Committee investigators. It wasn't shared with the committee itself in 
a closed-door session, which followed the open session, where Judge 
Kavanaugh was asked about other personal matters that came up during 
the course of the background investigation. The ranking member didn't 
even attend that closed-door session, nor did anybody mention it to the 
judge when he went to talk to some 60-plus Members of the Senate one-
on-one.
  The ranking member, when she had that one-on-one meeting with Judge 
Kavanaugh, said nothing to him about the allegations. She could have 
asked him about the allegations, generally, without revealing the 
identity of Dr. Ford. We know at that point, she had already talked to 
Dr. Ford and recommended partisan lawyers. We know those lawyers 
arranged for a polygraph examination to be administered. Other 
preparations were being made, plans were being hatched. Our colleague 
from California said nothing.

  I really think that Dr. Ford has been treated terribly by this 
ambush, by this hiding of evidence and allegations that could have been 
investigated and should have been investigated in a more dignified and 
appropriate sort of way.
  Once Dr. Ford was identified, in consultation with colleagues--both 
Republicans and Democrats--we decided Dr. Ford should be given an 
opportunity to tell her side of the story. Unfortunately, we were not 
able to mitigate or reverse a lot of the awful circumstances under 
which she had found herself because of what had already been unleashed, 
but we did our best. We tried to do whatever we could to accommodate 
her. As I said, investigators offered to go to California. We brought 
in an experienced sexual crimes investigating attorney to ask questions 
in a respectful sort of way in order to illicit as much information as 
we possibly could get about her claim even though it was 35 years old.
  Throughout the hearing, we listened to Dr. Ford, and we tried to 
understand what she was telling us. We took her allegations seriously 
and treated her in the same way we would have wanted our wives or our 
daughters to have been treated if they had found themselves in similar 
circumstances. Yet we knew, at the end of the day, there was no other 
witness to corroborate or to confirm what she had said, even by the 
ones she had identified as having been present.
  This is not about believing women or believing men. It is not a zero-
sum game. As the junior Senator from Nebraska said the other day, it is 
not about being for the #MeToo movement or against it. Who could be 
against it?
  I hope there is some good that comes out of this disgraceful display. 
One of the things that might be good would be that more women would 
feel confident in coming forward and telling their stories to the 
appropriate authorities and producing the sort of information that 
would be necessary to make a criminal case--to investigate the case, to 
charge the case, to try the case, and to convict the people who commit 
sexual offenses. I hope there is some good that comes out of this. 
There is also, maybe, some legislation that we could work on together 
to try to heal the wounds that have been caused by this abominable 
process.
  I have worked a lot with colleagues here to pass anti-human 
trafficking legislation, to end the rape kit backlog, and on other 
things to try to help victims. I think, maybe--just maybe--in putting 
our heads together, in talking with each other, and in working in good 
faith, we could come up with some legislative response that might find 
some good from this terrible situation.
  The other thing about these allegations that have been made against 
Judge Kavanaugh is that they are completely out of character. We know 
he has been a circuit court judge for 12 years, authored more than 300 
opinions, clerked for Anthony Kennedy on the Supreme Court, worked at 
the White House as a lawyer and as Staff Secretary for the President, 
taught at Harvard, and had been hired by now Justice Elena Kagan to 
teach at Harvard, as well as having taught at Georgetown and Yale.
  By all accounts--every account of anyone with personal knowledge of 
Judge Kavanaugh's character and treatment of women--he has treated 
women with respect. And it is not just conservatives who sing his 
praises. A liberal law school professor at Yale called Judge 
Kavanaugh's selection the President's finest hour, his classiest move. 
The same professor complimented Judge Kavanaugh's studiousness and said 
he has already shown flashes of greatness. Lisa Blatt, a self-described 
liberal feminist lawyer who has argued numerous cases before the U.S. 
Supreme Court, has said Judge Kavanaugh is supremely qualified. That 
echoes what the American Bar Association has said--the gold standard 
for some of our colleagues when it comes to judicial nominees. The 
American Bar Association has said that Judge Kavanaugh is unanimously 
well qualified. That goes for his temperament as well. So I believe 
this nominee is about as good as it gets.
  On July 10, the day after Judge Kavanaugh was nominated, I said that 
my Republican colleagues and I would not back down from this all-out 
assault on this nominee, but never in my wildest dreams could I have 
imagined that this fight would devolve into the mob rule that we have 
seen--of Senators and staffs taunted, threatened, and of millions of 
dollars spent in advertising and in paying protesters to show up on 
Senators' front lawns, to harass them at restaurants, and to attack 
them in the halls of Congress. I never imagined that this would get 
this bad, when Senators would say ``I am breaking the rules'' and would 
dare anybody to do anything about it. This has turned into the kind of 
nasty and venomous politics that I had hoped never to experience.
  This also has demonstrated the dark underbelly of Washington, DC, 
where power is so important to some people that they will do anything 
to get it. They will destroy you. They will tarnish your good name. 
They will condone threats on family members, including on children. 
They will harass you. This has really been disgusting.
  I am an optimist, so I don't believe this is our fate. I don't 
believe we are condemned to work in a Senate and live in a country 
where this kind of activity is condoned or ignored. Actually, I think, 
by defeating Judge Kavanaugh's nomination, we would be signaling that 
this is somehow the new normal. We would be setting the precedent of, 
yes, that kind of thing works, so let's try it again. I am not saying 
it is just one party or the other.
  The day after Judge Kavanaugh was nominated, I also said we would 
defend the record of Judge Kavanaugh, who is a thoughtful public 
servant, against deliberate attempts to denigrate him. I stand by that 
statement, and we have defended him. Yet we have not just defended him 
but have defended the Constitution, fundamental notions of fairness and 
fair play that are reflected in

[[Page S6567]]

our commitment to the due process of law, and the rights of somebody 
who has been accused of a crime, which Judge Kavanaugh has been accused 
of on multiple occasions.
  Even as the mud has been slung on all of us, even as insults have 
been hurled against this nominee and as his family has faced ridicule 
over atrocious exploits that never even happened, at least, I think, we 
can be proud of the fact we have tried to defend the Constitution, this 
institution of the Senate, and have pushed back with everything we have 
had against mob rule.
  Unfortunately, those who wanted to take down this nominee viewed 
Judge Kavanaugh as a sacrificial lamb in some sort of vengeance 
campaign. Thankfully, they have now failed to stop his nomination from 
going forward.
  This nomination is no longer simply about Judge Kavanaugh and the 
current vacancy on the Supreme Court; it is also about the principles 
we must stand up for and defend. It is about validating public service 
and decades of honorable conduct. It is not about forgetting all that a 
man has done, all that he is, and all that he has worked for at the 
drop of a hat based on unsubstantiated, uncorroborated allegations. It 
is about standing firm in the turbulent political winds. If I think 
about any institution in this country, I think about the Senate and how 
it ought to be the place in which standing firm against the turbulent 
political winds occurs.
  We all had a chance to read the FBI report, which failed to 
corroborate Dr. Ford's allegations. Then we did exactly what we needed 
to do today, which was to vote--to stop the circus, to stop the high 
jinks, to stop the character assassination, and vote. I am glad our 
colleagues decided to close off debate now as this 30-hour postcloture 
period ensues. I look forward to concluding the confirmation process 
and confirming Judge Kavanaugh to be the next Associate Justice on the 
U.S. Supreme Court.
  The ACTING PRESIDENT pro tempore. The Senator from Illinois.
  Mr. DURBIN. Madam President, I would like to respond to my colleague 
from Texas with regard to at least one or two aspects of what he said.
  He has characterized the opposition to Judge Kavanaugh as ``mob 
rule.'' I don't think that is a fair characterization. The opposition 
to Judge Kavanaugh is on many different levels. My colleagues on both 
sides of the aisle have looked at this nomination seriously, and they 
have come to opposite positions. I don't believe we are influenced, 
frightened, or in any way moved by mob rule. I just don't get it.
  Have I seen conduct that I think is untoward and really should not be 
condoned by people who feel strongly about this issue? Of course. Do I 
believe that people should have their freedom of speech limited or 
stifled? No, I don't. Even if it is something I don't want to hear, 
people have a right to speak. Of course, I will never condone violence 
or any physical activities against anyone, including Members of 
Congress. Some people have either come close to that line or have 
stepped over it, but I don't condone that in any way, shape or form.
  If we are truly committed to the Constitution that we have sworn to 
uphold and defend, the First Amendment creates opportunities for 
American citizens that others around the world long for and never see 
once in their lives. Part of that is freedom of speech. Part of that is 
the right to petition your government. So if some have stepped over the 
line, I will not defend them when it comes to violent conduct, but in 
expressing their points of view with a sign or a march or even a chant, 
I have to say that it is part of our constitutional birthright, thank 
goodness, in the United States of America.
  Last week, I saw Dr. Christine Blasey Ford for the first time. I had 
heard her name for a week or more. I had seen one photo of her in 
sunglasses, but I had never seen her or heard her speak. She came 
forward at great risk to herself and to her family after having been 
dislocated, with her kids, from two different homes. She came here to 
face the Senate Judiciary Committee and the Nation and to speak under 
oath. She had absolutely nothing to gain by coming forward. She did it, 
as she said, out of a sense of civic duty. She wanted to, in her own 
words, be helpful so that the Senate and leaders of this Nation would 
know what had happened to her before there would be any vote on the 
confirmation of Brett Kavanaugh to the Supreme Court. Her testimony was 
credible and powerful. She answered every question and tried to be 
helpful whenever she could.
  I was struck by the statement from the Senator from Texas. He said 
that in some way, we want to make sure that our wives and daughters are 
treated fairly if they come forward with this kind of information. I 
couldn't agree with him more, but we all know what happened after her 
testimony. Even President Trump, before a Mississippi rally, ridiculed 
and belittled Dr. Ford. After once calling her a credible witness, she 
became the butt of his joke at a rally in Mississippi. That is 
unfortunate.
  When Dr. Ford came before us, she had nothing to hide. The 
Republicans on the committee were so concerned about her testimony and 
their relationship in the questioning of her that they were unwilling 
to risk direct questioning as she sat in front of them. They pointedly 
enlisted a woman prosecutor to do their job. The prosecutor's 
examination was meandering and without any clear focus other than as an 
attempt to try to discredit Dr. Ford. That Republican prosecutor failed 
as Dr. Ford calmly replied to all of her questions.
  It was clear, however, that despite this testimony, even despite this 
hearing, many Republicans had made up their minds, as the majority 
leader had characterized it, to plow right through regardless of Dr. 
Ford's testimony. We hear so many tributes to Dr. Ford from the 
Republican side out of one side of their mouth, and then they turn 
around and say that it is a smear. A smear is a lie.

  I don't believe she was lying. They can't praise her on one hand and 
call her testimony a smear on the other. The majority leader did that 
for 3 successive days on the floor of the U.S. Senate.
  They even went so far as to schedule a committee vote before that 
hearing with Dr. Ford and Judge Kavanaugh had started.
  Then, last Friday, two of our colleagues, Republican Senator Jeff 
Flake and Democratic Senator Chris Coons, came together and joined Dr. 
Ford's call for a nonpartisan and thorough FBI investigation into the 
pending allegations against Judge Kavanaugh. That should have happened 
long before. Make no mistake. There would not have been a hearing with 
Dr. Ford were it not for Senator Flake, a Republican Senator, demanding 
it, and there would not have been an FBI investigation if he hadn't 
demanded it as well. I thank him for his leadership in doing that. 
Those were two reasonable requests, and I am glad that he was in a 
position to make it happen when Democrats could not. It was the right 
request.
  Of course it would have been helpful for Senators exercising the 
advice and consent role if neutral investigators at the FBI were 
allowed to question all of the relevant witnesses, follow the facts 
wherever they may have led, and get to the bottom of the allegations 
brought by Dr. Ford, Deborah Ramirez, and Julie Swetnick. 
Unfortunately, the White House and Senate Republicans were determined 
not to let such an FBI investigation go forward.
  A Whitehouse spokesman, Raj Shah, has now publicly acknowledged that 
Senate Republicans were allowed to severely constrain the scope of the 
FBI investigation. He said it. He said it publicly. He said it before 
the cameras.
  Senate Republicans allowed only a handful of witnesses to be 
interviewed by the FBI. Deputy Press Secretary Raj Shah said: ``There 
was an initial list of four''--four--``provided to us by the Senate.'' 
There were reportedly almost 40 corroborating or character witnesses 
who have been trying to share information with the FBI. The FBI has 
refused to contact them, even though their names had been provided.
  Dr. Ford's and Deborah Ramirez's attorneys both sent letters 
yesterday with lists of corroborating witnesses who were not 
interviewed by the FBI. There is no good explanation as to why these 
witnesses weren't interviewed by the FBI, nor can I explain why Dr. 
Ford and Judge Kavanaugh themselves weren't interviewed. Those are 
basic steps for a legitimate and credible investigation.

[[Page S6568]]

  Some of my Republican colleagues have claimed that the FBI's 
supplemental investigation provides no corroboration of Dr. Ford's or 
Ms. Ramirez's complaints, but, of course, you will not find 
corroboration if the investigation systematically excludes 
corroborating witnesses.
  Unfortunately, the effort by the White House and Senate Republicans 
to tie the FBI's hands in the Kavanaugh investigation is part of a 
pattern of concealment when it comes to the background of Brett 
Kavanaugh.
  The Senator from Texas says: I hope this isn't a new standard for 
hearings on Supreme Court nominations. I hope it isn't either. There 
are some things we have done in this particular nomination hearing that 
were unheard of.
  Millions of pages of Judge Kavanaugh's public service record have 
been blocked from release to the public and even to the Senate. There 
was a time when Senator Jeff Sessions--now Attorney General--demanded 
documentation on Democratic nominees, and at that time the Democratic 
chairman agreed with him. We provided all of the information requested, 
as we should have. In this case, with Republicans controlling the 
committee, we were limited.
  We have been denied access to an entire 35-month period in Judge 
Kavanaugh's White House career when he worked as one of the President's 
closest advisers as the White House Staff Secretary. During that time, 
he worked on controversial issues, such as same-sex marriage, abortion, 
torture, and Executive power.
  It is likely that there are documents in Kavanaugh's Staff Secretary 
record that would impact how Senators would vote on his nomination, and 
that is why they were hidden.
  There was also an unprecedented partisan effort to screen and limit 
the documents that the committee itself could see. I listened as the 
Senator from Texas said: Dr. Ford had a partisan lawyer. Well, guess 
who screened the documents that were going to go from the official 
archives to our Judiciary Committee to review for the nomination of 
Brett Kavanaugh. The man's name is Bill Burck. He is Kavanaugh's former 
deputy. By every measure, Bill Burck is a partisan lawyer. I guess it 
is no surprise. What I was surprised was to find that an individual 
lawyer would have such power over a constitutional provision of advice 
and consent.

  Overall, when all is said and done, after the denials from the White 
House of certain records, after the claims of Executive privilege, 
after Bill Burck went through and screened what he considered to be 
appropriate and inappropriate documents for the American people to see, 
less than 10 percent of Judge Kavanaugh's White House record has been 
disclosed.
  Those documents are going to come out some day, and those who are 
quickly voting for him now without reading them run the risk that they 
are making a mistake, which they are going to have to explain at a 
later time.
  Just yesterday we learned from a FOIA lawsuit that the National 
Archives has hundreds of documents concerning Brett Kavanaugh's work in 
the White House on warrantless surveillance programs. We will not see 
those documents before tomorrow's vote. The White House apparently 
fears their contents and prefers to plow through.
  Why has so much of Judge Kavanaugh's record been concealed? Most 
likely because these documents contradict what he said. We have seen a 
pattern with Judge Kavanaugh from his Senate testimony in 2004, 2006, 
and again last month. When he is asked about controversial issues that 
he has been involved with in the past, he tries to deny or downplay 
them. He has done this repeatedly when testifying about matters he 
worked on at the White House, including the rules governing detention 
of combatants; warrantless surveillance; controversial judicial 
nominations, such as Pryor, Pickering, and Haynes; communicating with 
the press during the Starr investigation; and his work with Manny 
Miranda, a Republican Senate staffer who stole documents from 
Democratic Senators' computers, including my own, and shared them with 
Brett Kavanaugh when he was working at the White House.
  On each issue, we have seen documents and reports showing that Judge 
Kavanaugh had far more involvement than his testimony let on. On issue 
after issue, Judge Kavanaugh's sworn testimony was either misleading or 
false.
  This is a judge who claims that words matter. He says that he is a 
strict textualist who holds other people accountable for their words, 
but when it comes to his own words, he is happy to take liberties and 
refuses to take responsibility. We have been forewarned of what we can 
expect if he is given a lifetime appointment on the Court.
  We saw this pattern again last week when he was asked about his high 
school yearbook and excessive drinking. They were legitimate questions 
that were relevant to the sexual assault allegations at hand. Many of 
Kavanaugh's answers to these questions simply weren't credible. His 
explanation of things he wrote in the yearbook didn't pass the laugh 
test. Multiple people who knew him and socialized with him quickly and 
publicly rebutted his denial that he ever drank, in their words, ``to 
the point that it would be impossible for him to state with any degree 
of certainty that he remembered everything that he did.''
  I was particularly struck when Senator Amy Klobuchar of Minnesota 
explained that she understands alcohol abuse because her father was an 
alcoholic and then asked Judge Kavanaugh if he had ever blacked out. 
Instead of responding, Kavanaugh said: ``Have you?'' Conservative 
columnist Jennifer Rubin has written: ``It was a moment of singular 
cruelty and disrespect.''
  It has been hard to take Judge Kavanaugh's testimony at his word on 
matters both large and small. That matters a lot when we are talking 
about a nominee's judgment, temperament, and integrity.
  Judge Kavanaugh's judicial record and his academic writings raise 
even more concerns. Not only did he check the box on President Trump's 
litmus test of opposition to the Affordable Care Act and Roe v. Wade, 
his judicial opinions consistently find ways to favor big business and 
undermine protection for workers, consumers, women, and the 
environment.
  He claims to be a textualist, but he has a habit of creatively 
defining words. In the Agriprocessors case, which I asked him about 
directly in the hearing, his dissent abandoned the text of the 
controlling statute. Instead, he borrowed a definition from another 
statute in order to argue against the right of slaughterhouse workers 
to vote to form a union. When I asked Judge Kavanaugh whether he ever 
worked in a job himself that was dirty and dangerous, as dangerous as a 
slaughterhouse, he told me he used to cut grass and worked one summer 
in construction.
  Look at his dissents in the White Stallion and Mingo Logan cases, 
where the judge gave his own definitions to key terms in the Clean Air 
and Clean Water Acts--so much for stare decisis.
  Judge Kavanaugh claims he follows precedent, but as we have seen in 
case after case, he goes his own way.
  Look at his interpretation in the Supreme Court's 2008 Heller 
decision. Judge Kavanaugh believes the Supreme Court created a history 
and tradition test for considering challenges to gun safety laws. This 
test would have courts ignore the public safety impact of gun laws. 
Judge Kavanaugh admitted that he is ``a lonely voice in reading Heller 
that way.''
  His approach would put at risk many commonsense laws, such as keeping 
guns out of the hands of domestic abusers. Judge Kavanaugh is not a 
lonely voice on gun safety; he is an extreme and frightening voice on 
gun safety.
  After he wrote a dissent laying out his interpretation of the Heller 
precedent, a majority panel of DC Circuit judges--all of them 
Republican appointees--said this of his interpretation: ``Unlike our 
dissenting colleague, we read Heller straightforwardly.''
  Judge Kavanaugh's reading of Heller may be music to the ears of the 
gun lobby, but it is manipulating precedent, nothing else.
  Judge Kavanaugh's claim that he follows precedent is also 
contradicted by his view of the Supreme Court decision Morrison v. 
Olson. Rather than admit the majority's decision in the case still 
holds, Judge Kavanaugh clings to Justice Scalia's dissent, which lays 
out the so-called ``unitary executive theory'' of Presidential power.
  Judge Kavanaugh has been explicit that he would overturn Morrison. 
Let's

[[Page S6569]]

be clear. While Judge Kavanaugh may claim that he will scrupulously 
follow precedent, he has shown he is willing to overturn it when it 
suits him. I have cited just a few examples.
  Also particularly troubling is this judge's view of Presidential 
power. Judge Kavanaugh wrote a striking passage in the Seven-Sky 
decision, dissenting from the majority's upholding of the Affordable 
Care Act. He wrote: ``Under the Constitution, the President may decline 
to enforce a statute that regulates private individuals when the 
President deems the statute unconstitutional, even if a court has held 
or would hold the statute constitutional.''
  This is a truly breathtaking claim of Presidential power, a claim 
particularly problematic at this moment in history.
  Then there is Judge Kavanaugh's evolving view on investigations of 
sitting Presidents. When he was working for Ken Starr and investigating 
President Clinton, he was pretty ferocious. But in 2008, he gave a 
speech and wrote a law review article arguing that sitting Presidents 
should be immunized from criminal investigations and civil suit. This 
was after Judge Kavanaugh spent a period of time working in the Bush 
White House.
  He claims that he has an open mind on the constitutionality of 
criminal investigations of sitting Presidents, but consider what he 
wrote in that law review article in the Minnesota Law Review:

       If the President does something dastardly, the impeachment 
     process is available. No single prosecutor, judge, or jury 
     should be able to accomplish what the Constitution assigns to 
     Congress.

  These are not the words of a judge with an open mind.
  It was a telling moment when Judge Kavanaugh at his hearing would not 
answer whether he believed a President should comply with a grand jury 
subpoena.
  Here is the reality: We have to consider why this President chose 
this Supreme Court nominee at this moment in history when the Mueller 
investigation is closing in.
  Just a few weeks ago, Judge Kavanaugh himself said: ``The Supreme 
Court must never be viewed as a partisan institution.'' But the 
testimony and demeanor of Judge Kavanaugh last Thursday belies any 
claim he makes of nonpartisanship.
  I can understand emotion and indignation from Judge Kavanaugh when 
one considers the gravity of the charges against him and the pain he 
and his family must feel, but there was fire in his eyes when he read 
the words he assured us he had personally written.
  Benjamin Wittes has been a colleague of Brett Kavanaugh. He has 
published his writings, and he even lent his name as a character 
reference for the judge. He called Judge Kavanaugh's performance before 
the Senate Judiciary Committee ``a howl of rage.'' Wittes went on to 
describe Kavanaugh's partisanship as ``raw, undisguised, naked and 
conspiratorial.''
  Charlie Sykes, a conservative commentator, said of Kavanaugh's 
statement before the committee last Thursday: ``Even if you support 
Brett Kavanaugh . . . that was breathtaking as an abandonment of any 
pretense of having a judicial temperament.''
  Judge Kavanaugh abandoned any veneer of neutrality last week before 
our committee.
  Out of one side of his mouth, he claimed that he bore ``no ill will'' 
toward Dr. Ford. Then he called her allegations ``a calculated and 
orchestrated political hit,'' citing ``apparent pent-up anger about 
President Trump and the 2016 election and revenge on behalf of the 
Clintons.'' He even threatened Democrats when he said: ``What goes 
around comes around.''
  In my 20 years on the Judiciary Committee, I have never heard 
anything like that--or even close to that--from a judicial nominee. It 
is hard to imagine how a nominee who has displayed such raw 
partisanship could then claim to serve as a neutral umpire on the 
Supreme Court. Judge Kavanaugh, through his testimony, has called his 
own impartiality into serious doubt.
  Retired Supreme Court Justice John Paul Stevens, a man who is 
respected for his integrity and service to this Nation, said this week 
that the performance by Judge Kavanaugh shows he should not serve on 
the Supreme Court. I agree. At a time when our President plumbs the 
depths of bad behavior on a daily basis, we should not allow the 
highest Court in our land to now sink to that same standard in their 
ranks.
  From a broader perspective, let's be clear what is at stake in this 
decision. We are at a moment in American history where our system of 
checks and balances is being profoundly tested. We have a President who 
has shown disrespect for the rule of law and the role of an independent 
judiciary. It is likely the Supreme Court will soon consider 
fundamental questions about Presidential authority and accountability. 
With so much at stake, we should not confirm a nominee to the Court 
unless we are sure of that nominee's credibility, integrity, 
independence, and judgment.
  Serious questions have been raised about Brett Kavanaugh. Dr. Ford's 
testimony was serious and credible. When I asked her directly what 
degree of certainty do you have that Brett Kavanaugh was your attacker, 
Dr. Ford answered, without hesitation: ``100 percent.''
  I believe her.
  Judge Kavanaugh's testimony was simply not credible. From his 
contrived explanations of his embarrassing yearbook entries, to his ``I 
love beer'' declarations, he was a sharp contrast to Dr. Ford's 
measured accounting of a horrible day in her life she cannot forget.
  I had hoped the FBI would be able to provide us with information to 
resolve unanswered questions, but they can't do their job if their 
hands are tied. When the Republicans in the committee and the White 
House decided to limit the number of witnesses, unfortunately, the 
investigation could not be completed to meet professional standards.
  I will say this to my colleagues. We have to think about what it 
would mean if Judge Kavanaugh were to be confirmed to the Supreme Court 
with credible sexual assault allegations against him. Specifically, 
what it would mean to the millions of women across America who are 
survivors of sexual assault--women who have been scared to come forward 
with their stories for fear of being mocked, ridiculed, and shunned. 
What would it mean for them to see Brett Kavanaugh sitting on that 
bench in that Court across the street, day after day, for decades, 
casting what may be the deciding vote on cases that profoundly affect 
their rights. It would shake the confidence of millions of Americans in 
the integrity of our Supreme Court. We should not take that risk.
  There are other qualified lawyers besides Brett Kavanaugh who could 
be nominated for this vacant seat--nominees whose legal views I may not 
agree with but who do not have serious questions about their fitness 
for office. If there are serious questions about a nominee's 
temperament, credibility, or judgment--as there clearly are for Judge 
Brett Kavanaugh--we owe a duty of caution. We should give the benefit 
of the doubt to protect the integrity of the Supreme Court.
  With so much at stake, we should not confirm a nominee to the Court 
unless we are sure the nominee's qualifications are beyond question. I 
do not have that confidence in Brett Kavanaugh. I will vote no on his 
nomination.
  The PRESIDING OFFICER (Mr. Kennedy). The Senator from North Carolina.
  Mr. TILLIS. Mr. President, I would like to summarize. The Presiding 
Officer and I have had a front row seat in this process. We both serve 
on the Judiciary Committee.
  I think oftentimes people come to the floor, and they want to just 
give the American public a little slice of what is going on that 
benefits their narrative rather than stepping back and thinking about 
what has happened since early July when Judge Kavanaugh was nominated 
to be on the Supreme Court. That happened on July 9.
  Before July 9, there were many people on the other side of the aisle 
who had already announced their opposition not to Judge Kavanaugh but 
to anyone whom President Trump would nominate. We know who they are. 
They are very well publicized. I understand that. As a Member of the 
Democratic conference, I wouldn't deny them their

[[Page S6570]]

right to do that. They oppose the President and anything he stands for.
  Then, on July 10, there was a press conference, now that we knew who 
the nominee was, and a majority of the Democratic Members also said 
they opposed him. As a matter of fact, the minority leader said he 
would fight the nomination with everything he has, and he has, but 
there are some pieces to the mechanics that I think are important for 
people to understand.
  Briefly, after Judge Kavanaugh was nominated, the chair and the 
ranking member got together, and they tried to come up with a framework 
for releasing as many documents as possible. In fact, that went on for 
2 or 3 weeks. In fact, the documents some of my colleagues on the other 
side of the aisle said the Republicans refused to produce were going to 
be made available on a very focused basis but with what they call 
search terms--the way to get into those 100,000 secret documents they 
are talking about. We estimate that if our colleagues on the other side 
of the aisle would have done what they have traditionally done--that 
is, come up with an agreement on document production--they would have 
gained a lot of insights into the documents we considered relevant but 
not necessarily the documents they would like to use to create another 
political narrative, but they refused to cooperate, and we moved 
forward. As a matter of fact, we moved forward and provided more 
documents for this Supreme Court nominee than the total number of 
documents provided for all, in total, of the last three or four Supreme 
Court nominees.
  We also went on to question--they call it questions for the record. 
What that means is that any member on the committee is entitled to 
compel the nominee to answer questions after the hearing. Judge 
Kavanaugh was subjected to over 1,200 questions for the record, under 
oath, that he had to submit back to the committee members. Those 
questions for the record are a multiple of any one nominee in the past; 
and, in fact, I understand it is probably the sum total of questions 
for the record that all the nominees on the bench were subjected to.
  So the questions were asked. The documents were presented. All of 
that document production was going on in the latter part of July and 
August; the first tranche of documents came in about the second week of 
August.
  What else was going on in the latter part of July and August? A 
letter, which was first submitted to a Congresswoman from California, 
was then routed to the ranking member, the senior Senator from 
California, at the end of July--a document that was expected to be held 
in confidence. It is a document we now know was authored by Dr. Ford, 
provided to the Judiciary Committee, with the understanding that her 
name would not become public.
  In the past, the chair and the ranking member have a great 
relationship. They have a trusting relationship. In the past, when you 
had something you thought was material to the consideration of a 
nominee, a ranking member and a chair would try to figure out how to 
actually assess that information to treat the person in question--in 
this case, Dr. Ford--fairly and to hold her information in confidence. 
That didn't happen here. Actually, there was no communication with the 
chair by the ranking member.
  A few weeks into it, we do know there was some consultation from what 
Dr. Ford says was a committee staffer to retain an attorney who has a 
very well-publicized reputation for being partisan. I don't have any 
problem with that because we have partisan attorneys on both sides of 
the aisle, but at the recommendation of the committee staff, which is 
what Dr. Ford said under oath, they retained an attorney who is working 
pro bono.
  Now, I am really wondering whether some--not all but some--of the 
people on the other side of the aisle genuinely cared about what I 
believe is a traumatic experience in Dr. Ford's life, genuinely care 
about trying to go through a process that would provide Dr. Ford with 
some closure because if they had, maybe they would have gotten someone 
who could interview her in the way that people experienced with sex 
crimes interview persons who have experienced a traumatic event. These 
attorneys who were retained didn't do that. Maybe, when the attorneys 
she retained, who are pro bono attorneys--that means they are not being 
paid, they are doing it at no cost or at least no cost to Dr. Ford--if 
the attorneys really cared about Dr. Ford versus the outcome, maybe 
they should have recommended to Dr. Ford to have the hearing, but that 
didn't happen either.
  Now we move further through, and at the hearing--we had 32 hours of 
hearings. The letter was known to the ranking member. I don't believe 
it was known to any other member on the committee--32 hours of 
hearings. Each one of us had two rounds, virtually an hour to ask 
questions of Judge Kavanaugh, not even an abstracted series of 
questions protecting the identity of Dr. Ford but questions that could 
have potentially raised the issues we now saw after the hearing. 
Thirty-two hours of hearings, nothing mentioned. An hour and a half 
private hearing that, unfortunately, Senator Feinstein, for whatever 
reason, wasn't able to attend, never brought up. After the hearing, 
then we heard about these allegations.
  Now, I have had some people on the other side of the aisle say we 
rushed the committee process. The fact is, it was delayed for 2 weeks 
after we found out about the allegation; 1 week was to get to a point 
to where we could accommodate Dr. Ford and have her come and testify 
before the committee. Chairman Grassley was criticized by some of the 
folks on my side of the aisle because they said he shouldn't be 
accommodating, delaying; set a deadline and moving forward. He didn't. 
He spent the weekend trying to figure out a setting, a method, that Dr. 
Ford would be comfortable with.
  Let me back up a week earlier. A week earlier, the chairman and the 
committee offered to Dr. Ford to go to California to interview her 
outside of the lights, outside of the circus that sometimes occurs 
here, and have the attorneys present during the interview. In the 
hearing we had with Dr. Ford, the question was asked: Were you aware 
that the committee offered to come to California in a confidential 
setting and allow you to give your testimony? Her response to that 
question was: I did not understand that. So that really raises a lot of 
doubts in my mind about either the competence or the agenda of her 
counsel.
  So now, at this point, I believe there are two sets of people who are 
opposed to Judge Kavanaugh's nomination. There are some who just 
genuinely disagree with his judicial philosophy. I actually vote for 
some judges when I disagree with their judicial philosophy. There are 
some on the agenda that I will again, but I am going to vote for them--
and I am going to get criticized by people on the right side of the 
aisle--because they are considered unanimously ``well qualified'' and 
just because I don't like the way they rule in certain cases, that is 
not enough reason to vote against them, but maybe for people on the 
other side of the aisle there is.
  Then there is another group of people over there who I genuinely 
believe have used witnesses, have used this process, to just advance a 
political message and a political agenda.
  Another reason I believe that is how the narrative changes depending 
on what sticks. We have received the additional background 
investigation. I should mention Judge Kavanaugh has had seven 
background investigations over the last 25 years. I saw a stack of 
documents in a secure facility that is about that thick; I would 
estimate 600 to 1,000 pages of prior Federal FBI background 
investigations to clear him for other roles he has had, as well as in 
this case. Over 25 years talking to 150 people, some as recently as 
about 10 years, or less than 10 years after he was in college, and not 
a whiff of any of the allegations we have seen put forward--not a 
single note.
  So as more information comes up, we see the narrative going from the 
weight of the allegations--because, honestly, in every instance where 
an accuser has made an allegation and said these people were present, 
those people have been interviewed if they were willing to, and none of 
them have corroborated the allegations that were made--none. In the 
followup investigation, it even further undermined the sort of 
inference you draw when somebody says: Yes, these people were there. 
Check with them. We went back

[[Page S6571]]

and checked with them, and it further undermined the veracity of the 
allegations that were made.
  Now it looks like the narrative on the allegations is beginning to 
wane, so now the new narrative--and this is the last I will be talking 
about--is that, well, even if the allegations are untrue, the way Judge 
Kavanaugh behaved in the hearing--he was angry--raises a question about 
his judicial temperament.
  Ladies and gentlemen, first, the American Bar Association has voted 
Judge Kavanaugh unanimously ``well qualified'' twice. In at least the 
most recent rating, they even spoke specifically to his temperament on 
the bench. I saw his temperament during the hearing for 32 hours. He 
sat in that chair in some cases for 2 or 3 hours without getting up and 
was patient when some unfair questions were being asked. He was cut off 
repeatedly, and he maintained his composure. He did well in about 31, 
32 hours' worth of testimony.
  Last week, I didn't see Judge Kavanaugh in the hearing; I saw Brett 
Kavanaugh. I saw a father, I saw a husband, I saw a son who was 
defending his honor. I saw somebody dragged through the mud without a 
single allegation with any corroborating testimony defending himself as 
a human being, and he did well for about 2 hours.
  One final note. I firmly believe that Judge Kavanaugh is going to go 
to the Bench, and I firmly believe that because of his independence, he 
is going to make some rulings that I am not going to like, but he is 
going to do it for the right reasons.
  What he is going to say is ``Instead of treating us like a nine-
member legislature, go do your job, Congress. Change the law if you 
want me to have a different opinion'' when it comes to the Court. We 
should now be in that light, thinking about how we work together on a 
bipartisan basis to change things that we don't like, not expecting a 
nine-member legislature to do our job.
  This has been a very difficult process. I know it has been 
extraordinarily difficult for the Kavanaugh family and for Dr. Ford. I 
pray for Dr. Ford's peace. I hope she finds closure. I hope there is 
some way she will be able to reexamine the facts of that summer in 1982 
or 1983 and identify precisely what happened, precisely who can 
corroborate it, and have someone held accountable for that act. But I 
don't believe by any stretch of the imagination, based on the 
information presented to us, that that is Judge Brett Kavanaugh. For 
that reason, I will be voting no tomorrow--I will not be voting no 
tomorrow; I will be voting yes tomorrow.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, the deeply misguided vote to move forward 
on Brett Kavanaugh's nomination has taken the Senate a step closer to a 
moment that will cause enormous pain for millions of Americans, 
particularly women and survivors of assault.
  Some may say that the Senate is rolling back the clock on women in 
America by confirming Brett Kavanaugh. After seeing what has happened 
to the women who have spoken out and talking to women in Oregon, I 
question how much the clock ever ticked forward. Indeed, this process 
has shone a spotlight on the double standard women across this country 
face just so they will be believed.
  On the other hand, Dr. Ford never wanted any of this. The way she has 
been treated by Republicans in the Senate and the President of the 
United States is inexcusable. In one of the most un-Presidential 
speeches I have ever seen or heard, the President belittled a survivor 
in front of a crowd of thousands.
  Dr. Ford came to us as a citizen who was doing her civic duty to 
provide the Senate with crucial information about a nominee before us. 
She called the front desk of her Congressperson; she didn't run to the 
news media or the cable shows or try to sell a book. She volunteered to 
tell her story under oath. She recounted the details of her assault in 
18 minutes of testimony that will not soon be forgotten. It was 
heartbreaking to watch. At times, it was just excruciating.
  What did Dr. Ford get for her courage? She was put on trial by the 
Republicans on the Judiciary Committee, who actually hired an 
experienced prosecutor to grill her. The questioning was clearly 
designed to tar Dr. Ford as a political pawn. It attempted to 
delegitimize the trauma caused by her assault. It attempted to paint 
her as a liar.
  It was stunning how little of the questioning Republicans subjected 
her to was focused on what Brett Kavanaugh did on the night in 
question. It is clear now that the focus was on undermining Dr. Ford's 
story and destroying her credibility. But Dr. Ford's credibility held 
up. I have said that I can't imagine a more credible witness, nor can I 
imagine how difficult it must have been for her to relive that 
experience and maintain such extraordinary composure. What she did took 
unknowable strength. Her testimony, delivered under what amounted to 
prosecution, was unforgettable. She is trained in psychology. She was 
even forced to act as the expert witness in her own trial, diagnosing 
the lifelong effects of her own trauma. She explained to the committee 
how memories of traumatic events implant themselves on the brain.
  At one point, she described what she remembered most about the 
assault by Mr. Kavanaugh and Mark Judge. She answered, delivering on 
her training, that ``indelible in the hippocampus is the laughter.''
  I believe Dr. Ford when she says she was assaulted in that room in 
1982. I believe Dr. Ford when she says that her attackers locked the 
door, a hand was pressed over her mouth, and she feared for her life. I 
believe her when she says she remembers them laughing.
  For all the grueling prosecution the Republicans put Dr. Ford 
through, it is important to compare that to the treatment of Brett 
Kavanaugh. When it was Kavanaugh's turn to deliver testimony, he was 
seething. He was raging in a manner completely unbecoming a Federal 
judge. He behaved in a manner that directly contradicted what Brett 
Kavanaugh said in a widely publicized speech a judge should be all 
about. In his own words, Mr. Kavanaugh said judges need to keep their 
emotions in check, to be calm amidst the storm. Mr. Kavanaugh failed 
his own test--his own test--last week. He offered the most partisan 
testimony I can recall when he talked about the Clintons and said 
``what goes around comes around.''
  Imagine if a female nominee had snapped at a male Senator about his 
drinking habits. The President of the Senate is an experienced judge 
and prosecutor. I am telling you, if a female nominee had done that, 
game over right there--right there. There again, you have the double 
standard.
  When a few questions posed by the Republican prosecutor actually got 
to relevant questions, the majority side of the committee told her to 
just take off.
  For that to be the only hearing on these allegations I think is just 
plain disgraceful. The committee should not have moved on to the vote. 
The allegations brought forward demanded a robust investigation. Yet 
the Senate has ended up light-years away from that. What kind of 
investigation looks to settle matters and doesn't interview the accuser 
and the accused? That just doesn't pass the smell test.
  This is not about tarnishing Brett Kavanaugh's reputation or digging 
up salacious details from his high school days. The accusations against 
Mr. Kavanaugh and the possibility of perjury--both of which he denies--
relate directly to his binge drinking and sexual behavior. That is why 
the FBI background check should have been a robust inquiry into those 
matters. It is clear now that didn't happen. You ask yourself, why not? 
It is hard to find an explanation other than the investigation was 
handcuffed to predetermine the outcome.
  Dr. Ford has said publicly that the FBI didn't talk to her, and they 
didn't look at the therapy notes she offered to turn over. They didn't 
talk to Mr. Kavanaugh. They didn't talk to the dozens of individuals 
who Deborah Ramirez said could potentially corroborate her story. They 
closed the investigation a full day ahead of the arbitrary deadline, 
and it is not clear why.
  Based on that, in my view, this investigation was a whitewash. It was 
not legitimate. It was the product of intense political meddling, in my 
view, by the Trump administration. That means, if Brett Kavanaugh's 
nomination is confirmed, there are going to be questions about his 
legitimacy looming large for years to come.

[[Page S6572]]

  I believe Dr. Ford. I have heard the Presiding Officer discussing 
this this morning on television. I respectfully would say I know the 
Presiding Officer doesn't share my view. But I felt that Brett 
Kavanaugh's behavior before the Senate last week ought to be 
disqualifying on its own. If you compare what he said last week to what 
he wrote ought to be the requirements for how a judge behaves, there is 
a very large gap between what Brett Kavanaugh said ought to be expected 
of a judge's behavior and what we saw last week when he testified.
  From the time his nomination was announced, Kavanaugh portrayed 
himself as a trustworthy individual who had the kind of levelheaded 
temperament Americans expect and deserve from members of the judiciary. 
My view was that appearance last week before the committee my colleague 
serves on was a textbook case of raw partisanship.
  In his afternoon testimony last week, Brett Kavanaugh was disdainful 
and sarcastic toward the Democratic Senators who questioned him. Brett 
Kavanaugh responded to what he considered to be unsubstantiated 
allegations by making truly unsubstantiated allegations of his own. 
Without any evidence, he declared the credible accusations that had 
been brought forward a ``calculated and orchestrated political hit'' by 
the Democrats. He pushed these baseless, conspiratorial comments about 
how this was all just revenge for the Clintons. And in a tone that just 
struck me as dripping with menace, he just said: ``What goes around 
comes around.''
  If you look last week at how he presented himself to the chairman of 
the Senate's committee, I think you have to ask yourself: How can 
anybody expect that Brett Kavanaugh would offer a fair hearing in a 
politically charged case?
  My conclusion, based on what I have described, is pretty simple. You 
just do not get to behave the way Brett Kavanaugh behaved last week and 
get to serve on the United States Supreme Court.
  Finally, my concerns go further than the temper tantrum we saw last 
week. There is hard evidence that shows that Brett Kavanaugh lied 
repeatedly and on a variety of subjects. For example, just yesterday, 
there was new evidence in scores of emails that the nominee lied about 
his involvement in government wiretapping programs.
  The Presiding Officer of the Senate has been very gracious over the 
years in talking to me about these issues. He knows I care deeply, as a 
member of the Senate Intelligence Committee, about government 
wiretapping programs. I am here this afternoon to say I am not alone. 
Millions of Americans care about this issue. As I have said in my 
conversations with the Presiding Officer of the Senate, security and 
liberty are not mutually exclusive. You can have both.
  What these emails--scores of them yesterday--prove is there is new 
evidence that Brett Kavanaugh did not tell the truth about his 
involvement in government wiretapping programs. There is hard evidence 
that shows he lied about using stolen documents, hard evidence that 
shows he lied about his involvement in the confirmation process of 
certain Bush nominees, hard evidence about the statements made by the 
other individuals who were present at the party where Dr. Ford was 
assaulted, hard evidence the nominee lied about when he learned of the 
second set of allegations made against him. The nominee even lied about 
small stuff. When you can't trust somebody to tell the truth, they 
don't belong on the Supreme Court.
  It is important, before I wrap this up, to take a hard look at what 
has happened to the Court over the last few years. In 2016, Senate 
Republicans blocked a mainstream nominee to the Court--an individual 
who many Republicans had praised extensively--extensively--in the past. 
They held a Supreme Court seat open for nearly a year until a 
Republican President picked someone to their liking.
  In 2018, the Trump White House interfered with the vetting of a 
second nominee, hiding key information from the Senate and the American 
people.
  The floor debate on this nomination is going to be cut off before all 
the questions about sexual misconduct can be answered and before the 
statements I have outlined here today--ones where there is hard 
evidence--can be examined for perjury. These actions by the Republicans 
and the Trump White House, in my view, are taking a sledgehammer to the 
public's trust in the Court as an institution.
  The Court used to have a healthy separation from the partisan battles 
that take place here in the Congress. I heard my colleague talking 
about that this morning on television. That healthy separation doesn't 
exist today. I just say, we have a lot of heavy lifting to do in the 
U.S. Senate to revive the vision of the Supreme Court held by the 
Founding Fathers after what has happened.
  I am going to close by going back to the question of whether anything 
has changed since 1991 and the tragedy of Professor Hill. When 
Professor Hill testified in 1991, she was dragged through the mud. She 
was called a scorned woman. Perhaps you can say it represents some 
measure of progress that Dr. Ford wasn't slandered and insulted in 
quite the same way. But I don't know how much that matters if this 
nominee is confirmed.
  The language used during the debate might sound different, but the 
outcome is the same. The failure by my colleagues on the other side to 
step back, suspend the partisan warfare, and recognize the seriousness 
and legitimacy of this information, in my view, will go down over time 
as a historic disappointment.
  This was never a smear campaign. It wasn't a political hit job. Dr. 
Ford came forward out of a sense of civic duty. She knew the sacrifice 
she faced, and she wondered to herself if it would really make a 
difference. Why suffer through annihilation if it will not matter, she 
asked. Over and over again, she told us she only wanted to be helpful. 
I have never seen a witness--like my colleague presiding today, I have 
seen a lot of witnesses. She was a textbook case of being courteous, 
always saying: What can I do to be helpful?
  Senators ought to consider the dangerous signal being sent to 
survivors of assault and to young people across the country from this 
debate. Dr. Ford wasn't on trial; nonetheless, she was prosecuted by 
the majority party. She got smeared as a political pawn, a liar, 
belittled, with her accusations dismissed by many almost immediately.
  I made notion of how, a few days ago, the President mocked Dr. Ford, 
mocked her in front of thousands. What a cruel and un-Presidential 
moment. If the mockery and dismissiveness are not bad enough--if they 
weren't bad enough, there is the return of the sickening old notion 
that boys will be boys, what happened in the bedroom was 
``roughhousing,'' and what happened was just too long ago. Today, 
survivors from sea to shining sea are asking: How are we going to be 
heard? How will we find justice?
  I fear many survivors are going to conclude that coming forward with 
their story is going to be pointless, and there is very little 
likelihood of justice--very little likelihood of justice. Even if you 
are strong, composed, and constantly courteous, it will not help.
  On the other hand, the signal to boys is this: Even if you engage in 
violence against women and lie about your conduct, the power structure 
is going to step up and protect you. The Senate has to be better than 
this.
  I hope Senators are going to recognize that it is time to take these 
horribly outdated attitudes towards women and sweep them out like the 
cobwebs from an abandoned theater stage and start over. It can begin by 
rejecting this nomination today.
  I will be voting no.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. RUBIO. Mr. President, as a Member of the U.S. Senate, my role in 
providing advice and consent to the President on his or her nominations 
to the Supreme Court is among our most important constitutional duties.
  In fulfilling that duty, I have a pretty clear criteria on how I go 
about making these decisions. The first is whether the nominee has the 
character to serve on the Supreme Court; the second is whether the 
nominee has the intellect and the experience and the academic 
credentials to serve on a Court that hears complex and difficult 
questions of law; and the third is does the nominee believe in the 
proper role of

[[Page S6573]]

the Supreme Court, which, in my opinion, is to interpret and to apply 
the Constitution, not to change or manipulate it to reach a certain 
policy goal.
  There is broad bipartisan support for the first two parts of my 
criteria. We can all agree that people who serve on the Court should 
have the character to do so. We can all agree our nominees and those 
who serve on the Court have to have the intellect and the experience 
and the academic credentials to be on the Court.
  Much of our fights around here center around the third part of my 
criteria. In fact, it goes to the heart of most of the nomination 
fights we have. There are some who would like the Supreme Court to 
become a policymaking branch, a place that makes policy and makes laws, 
but I believe the job of an appellate court is to decide whether a 
policy decision of the political branches is constitutional. Appellate 
courts and trial courts are different. Trial courts are triers of fact. 
Appellate courts are triers of law.
  The debate about the proper role of the Court plays out most vividly 
on some of the most divisive cultural issues, and it always has. For 
example, on the difficult issue of abortion, the question before the 
Court in Roe v. Wade was not whether it was good or bad for abortion to 
be criminalized or constricted, the question was whether the 
Constitution gave the State or Federal Government the authority to pass 
laws that banned or restricted abortions.
  The question before the Court in Obergefell v. Hodges was not whether 
same-sex marriages were good or bad for America. The question was 
whether the Constitution allowed States to define marriage as being 
between one man and one woman.
  In deciding these kinds of questions, I believe Justices, both on the 
Supreme Court and appellate-level judges, should apply the strictest 
interpretation of the Constitution according to its original intent, 
irrespective of whether the policy result of their decision is 
something they personally agree with. The reason for that is because if 
the Constitution can mean whatever people at a given moment want it to 
mean, then the Constitution doesn't really mean anything at all. We can 
change our laws. That is why Congress has to respond to the electorate, 
why we debate laws, and then are held accountable for it, but the 
Constitution has to be something that is constant, irrespective of the 
political tides of the moment.
  Now, you can change the Constitution. The Founders gave us a process 
to do that through Article V, the constitutional amendment process, and 
that has been used in this country. They would not have given us that 
process if it were their intent that the Supreme Court be the one that 
could change the Constitution.
  The reason I outline that criteria is because that is the criteria I 
used to evaluate Judge Kavanaugh's nomination when it was first 
presented. I found myself with no doubts about his intellectual ability 
or his academic credentials, and I don't think anyone has raised those.
  I have seen seven FBI background checks that turned up no issues with 
his character, and I had 12 years of his service as a Federal appellate 
judge as proof that he shared my criteria for the proper role of the 
Court and the proper standard for constitutional review.
  So it was based on that and on those facts that in August I announced 
I supported Judge Kavanaugh's nomination.
  Then, several weeks ago, the allegations, first by Dr. Ford and then 
by others, emerged. Sexual harassment and assault is something I feel 
very strongly about. It is, for example, one of the reasons I have been 
involved for a number of years now in a bipartisan effort to reform and 
improve how we handle claims of sexual assault on our college campuses. 
Our Nation is now facing a reckoning for decades of not addressing 
sexual violence appropriately.
  While I obviously will not betray anyone's confidence or privacy, I 
have personally seen how victims of sexual assault often find their 
claims dismissed and ignored. I have seen how sometimes they are told 
things like: You are partially to blame for putting yourself in that 
position. I have seen how so many never came forward and don't want to 
come forward because they don't think anyone will believe them or they 
don't believe anything will ever happen.

  That is why I believe anytime anyone comes forward with allegations 
of sexual assault or harassment, abuse, these allegations cannot be 
swept aside, and they cannot be ignored. When these allegations emerged 
in this case, my immediate reaction was to say these claims should be 
taken seriously and his accusers should be fully heard. I said I would 
have no further comment on his nomination until we knew more about 
these allegations. What that meant was, my support of Judge Kavanaugh 
was now contingent on the information that emerged from the hearings 
and the investigation and the work that needed to be done.
  I will say today what I said at this time last week. I believe 
neither Dr. Ford nor Judge Kavanaugh have been treated fairly in many 
instances. Some--I saw you--immediately basically dismissed these 
claims as a political ploy. Others went on television almost 
immediately and said they believed Judge Kavanaugh was guilty without 
any information before them.
  Despite the shameful behavior of so many, a process did ensue. 
Through all the noise, that did produce additional information. The 
Senate's Judiciary Committee and then the Federal Bureau of 
Investigation gathered and made available to every single Member of the 
Senate additional relevant information.
  The committee took sworn testimony from several named witnesses. I 
know for a fact they chased down and investigated a seemingly endless 
stream of incoming information every single day, and it provided both 
Dr. Ford and Judge Kavanaugh the opportunity to give written statements 
and then participate in hours of public testimony, not just before the 
committee but before the entire Nation.
  When that hearing ended last Thursday, the information before us was 
as follows: The sworn and unequivocal allegations by Dr. Ford, the 
sworn and equally unequivocal denial from Judge Kavanaugh, no witnesses 
with knowledge of these allegations, and no independent evidence to 
corroborate them.
  After the hearing, a week ago today, some of the Senators on the 
committee wanted a short delay. I watched that hearing. It was agreed 
to by everyone there, a short delay, 7 days, so the Federal Bureau of 
Investigation could gather even more information, and I had no 
objection to that.
  Over the last week, the FBI interviewed 10 additional witnesses and 
gathered additional relevant information for every single Senator to 
review.
  First, I was briefed on these interviews and information; then I had 
occasion to review them for myself. Here is what I know now about the 
allegations against Judge Kavanaugh. I have the sworn and unequivocal 
testimony of Dr. Ford and Ms. Ramirez making these allegations against 
Judge Kavanaugh. I have the sworn and unequivocal denial of these 
allegations from Judge Kavanaugh. I now have before me the testimony of 
10 additional witnesses, including those identified by Dr. Ford and Ms. 
Ramirez as having been present when Judge Kavanaugh allegedly assaulted 
them, and not a single one of them had any recollection of the alleged 
gatherings, much less any knowledge of these allegations, and I still 
have no independent evidence which corroborates these allegations as 
well.
  That is the information before me as I stand here at 1 p.m. eastern 
time on the 5th of October with regard to the nomination of Judge 
Kavanaugh to the Supreme Court of the United States. That is the same 
information that is before every other Member of the Senate who has 
access to the exact same information that I saw, that I read, and that 
I was briefed on.

  I have listened to the arguments made by some of my colleagues and 
others urging me to still vote against the nomination. The most direct 
argument made to vote no is that the FBI did not interview enough 
people.
  First, my view is that the only people who could corroborate those 
claims are those who were there when it happened because anything other 
than that is hearsay. If you didn't see it happen, all you can testify 
to is what someone else told you. The only people who could corroborate 
that something happened are either people who received physical 
evidence or people who

[[Page S6574]]

witnessed it. From what I read yesterday, every single person the 
accuser said was present when it happened testified that they do not 
know anything about it.
  By the way, the other point I would make is that these interviews 
that we saw yesterday, the 10 additional ones--it would be unfair to 
view them in a vacuum, as if they were the only information we have to 
go off of. Here is a fact: Over nearly the last two decades, the 
Federal Bureau of Investigation has interviewed over 150 people, asking 
questions about Judge Kavanaugh's background and past. Over 150 people 
have been interviewed about Judge Kavanaugh over the last two decades 
and across seven background checks, and not a single one of them has 
ever testified as to any sexual assault against anyone at any time.
  It struck me that there isn't a single Member of the U.S. Senate, I 
think--maybe I am wrong, but I doubt seriously that there is any Member 
in the U.S. Senate who has had the FBI question over 150 people about 
what they have done throughout their life. In fact, I would venture to 
guess that there are probably few, if any, Americans who have had the 
FBI interview over 150 people about what they have done throughout the 
course of their lives. I believe it is reasonable to assume that if 
Judge Kavanaugh was someone who had engaged in a pattern of abusive 
behavior toward women--on a pattern--at least one of these 150-some-odd 
people would have noticed and would have said something about it. Yet 
not a single one of them did.
  I would be remiss if I didn't mention that there is clearly another 
factor that is driving much of the anger and passion around this 
nomination, and it has nothing to do with partisan politics or politics 
at all, for that matter. It is the fact, as I mentioned earlier, that, 
sadly, far too often, particularly women who come forward with 
allegations of harassment, abuse, or assault are ignored, dismissed, 
and even blamed. The fact is, because of this, there are potentially 
millions of victims who have never come forward and who suffer in 
silence.
  I understand that for the victims and for those who love them and for 
those who are survivors, to hear about these allegations brings back 
powerful and painful memories of what happened to them, of how they 
were ignored, how they were not believed, how they were blamed, and how 
their abuser got away with it. What has happened to these survivors is 
an injustice. It is wrong. It is something that we as a nation must 
reckon with and we as a people must fix. But the solution to injustice 
is never injustice, and it would be unjust to turn this nomination into 
a proxy fight over the broader, important issue of how we have treated 
victims of sexual assault in America. As important as that topic is, 
this debate is about a specific case involving specific people and 
specific allegations. Fairness and justice require us to make our 
decision on this matter based on the facts before us on this matter.
  It was wrong for some to immediately dismiss these allegations almost 
as a reflex, but it is also wrong to claim that a vote for Judge 
Kavanaugh's nomination means that you do not care about and do not as a 
matter of course believe victims of sexual violence.
  My colleagues and my fellow Americans, this case is about this case, 
and although the ways in which both the accuser and the accused have 
been treated are shameful, we must still make our decision based on 
what we know.
  I want to make one thing abundantly clear: I do want people on the 
Supreme Court who believe that the proper role of that Court is to 
interpret the Constitution according to its original intent, but if I 
had any evidence--or if any evidence emerges that corroborates these or 
any allegations of this kind--I would have voted against this 
nomination in a heartbeat because someone who has committed sexual 
assault shouldn't be on the Bench, they should be in jail. If you lie 
about it to Congress, you should also be charged with perjury. But 
after 7 background checks and over 150 people having been interviewed, 
we don't have any independent evidence to corroborate these allegations 
against him--none.
  So with regard to this specific case, on the basis of the facts that 
I have before me, that we have before us--on the basis of what facts am 
I supposed to not just vote down this nomination but in the process of 
doing so, render what will forever be perceived as a verdict of guilt? 
On the basis of what facts can anyone say or do that?
  It is legitimate to vote against him because you don't agree with his 
judicial philosophy, but it isn't fair to say you are voting against 
him, as some imply, because we are on the verge of putting someone who 
is a confirmed and verified sexual abuser on the Bench. That isn't 
justice, and no matter how just the cause is, a just cause never, never 
justifies an unjust means.
  Based on the specific facts before us regarding this specific 
nomination and this specific case, I already voted to end debate on the 
nomination of Judge Kavanaugh, and tomorrow I will vote to confirm him 
as an Associate Justice of the Supreme Court of the United States.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. CARPER. Mr. President, good afternoon. I rise today to address 
the nomination of Judge Brett Kavanaugh to serve on the U.S. Supreme 
Court.
  As we all know, the stakes are always high when this Chamber vets and 
debates and votes to confirm any of the President's Supreme Court 
nominees, as they should be. This is, as we know, the highest Court in 
our land. The job comes with a lifetime appointment--not 2 years, like 
they have in the House of Representatives; not 4 years, like the 
President; not 6 years, as we have--a lifetime. As we know, looking at 
one of the Justices on the Supreme Court who is, I think, now 85 years 
old, that could be a long, long time.
  Those who serve on the Supreme Court make decisions that will affect 
the lives of millions of Americans almost every day. That is precisely 
why we expect Presidents to look for the best and brightest candidates 
possible. That is why the vetting process in the Senate should be 
serious and thoughtful. That is why nominees should strive to be above 
reproach. Indeed, we all should strive to be above reproach. This 
absolutely should be one of the toughest job interviews around because 
the stakes surrounding any Supreme Court seat are just that high.
  The stakes surrounding the seat vacated by Justice Kennedy may be 
even higher. The next Justice may shift the balance of our Nation's 
highest Court for a generation, maybe even longer. The next Justice may 
very well be asked to rule on questions of Executive power that test 
our democracy.
  We are fooling ourselves if we refuse to acknowledge that the stakes 
are so high in large part because this Chamber has yet to reckon with 
the grave injustice that was done to Merrick Garland and to our 
Constitution in 2016.
  As many will recall, Judge Garland, who serves as the chief judge of 
the DC Circuit Court--the highest Federal appeals court in our land--
was nominated by President Obama over 2 years ago to fill the seat held 
by the late Justice Scalia on the Supreme Court. Shamefully, he was 
denied any kind of consideration by this body. He waited 293 days for a 
hearing and a vote that never came. Most Republican Senators refused to 
even meet with him. A good man was treated badly, and so was our 
Constitution.
  The unprecedented obstruction our Republican colleagues mounted 
against Judge Garland was a shameful chapter of the U.S. Senate. I am 
still deeply troubled by those 293 days. I know some of my colleagues 
are as well. It is likely that I will continue to be troubled by them 
for the rest of my life.
  We may never agree which side pulled the pin out of the grenade, but 
we must all recognize that this institution will never be the same if 
stealing Supreme Court seats and creating one set of rules for 
Democratic Presidents and another set for Republican Presidents is the 
new norm.
  Despite the injustice done to Merrick Garland, Judge Gorsuch was 
ultimately confirmed last year--on a bipartisan basis, I might add.
  When Justice Kennedy retired earlier this year, President Trump 
nominated, as we know, Judge Brett Kavanaugh to fill that seat. More 
than 12 years ago, I met with Judge Kavanaugh in my office here in the 
Capitol when the Senate considered his nomination to the

[[Page S6575]]

DC Circuit Court of Appeals. Back in 2006, I voted my hopes over my 
fears. Unfortunately, over the last decade, many of my worst fears have 
come true.
  I believe that Judge Kavanaugh's extreme record on the bench that has 
unfolded over the past dozen years stands in stark contrast to the 
views of most Americans on too many important issues. For example, 
Americans overwhelmingly support protection for those living with 
preexisting conditions. Brett Kavanaugh ruled against upholding the 
Affordable Care Act in 2011. That is why we expected he would side with 
conservative Justices if and when cases like Texas v. United States 
come before the Court. If he does, the ACA's protection for people with 
preexisting conditions will be invalidated for tens of millions of 
Americans.
  Speaking of healthcare, Americans overwhelmingly support women having 
the freedom to make their own healthcare decisions. Brett Kavanaugh, 
while working in the Bush White House in 2003, wrote an internal memo 
stating that Roe v. Wade may not be considered ``settled law of the 
land'' because the Supreme Court ``can always overrule its precedent.''
  Americans also overwhelmingly support independent checks on Executive 
power. We believe no one in America is above the law. Yet Brett 
Kavanaugh, in a July 2009 Minnesota Law Review article, wrote that 
Congress should pass a law to exempt a sitting President from criminal 
prosecution or investigation. When I learned of this, my reaction was: 
You have got to be kidding. Apparently, he was not kidding. Ironically, 
that declaration came 11 years after Brett Kavanaugh played a key role 
in drafting the Starr Report, which laid out grounds for impeachment of 
then-President Bill Clinton.
  The greatest threat Brett Kavanaugh may pose to this country and its 
people is with respect to our environment. In all my years, I have yet 
to meet anyone who doesn't want to make sure we have clean air to 
breathe and clean water to drink. A review of Judge Kavanaugh's nearly 
300 opinions over the last 12 years, both concurrencies and dissents, 
shows Judge Kavanaugh has voted to weaken or block environmental 
protections a staggering 89 percent of the time. In fact, Judge 
Kavanaugh has never dissented in a case that would weaken environmental 
protections and admitted as much in his response to questions for the 
record from Senators Feinstein and Harris. In other words, almost 9 out 
of 10 times, he has sided with those who weaken environmental 
protections over those who would strengthen it.
  I fear that if confirmed, Judge Kavanaugh could well turn out to be 
the next Scott Pruitt. We remember him. However, unlike former EPA 
Administrator Pruitt, whose tenure ended finally after 18 tortuous 
months, Brett Kavanaugh could damage our environment for a quarter 
century or more if he serves on the Supreme Court.
  For example, just last year, Scott Pruitt's attempt to delay rules 
limiting methane emissions from oil and gas drilling was challenged in 
the DC Circuit Court, where Judge Kavanaugh now serves. In that case, 
Judge Kavanaugh sided with Scott Pruitt and the fossil fuel industry, 
voting against his colleagues who found Pruitt's delay illegal.
  Judge Kavanaugh also attempted to severely limit EPA's authority to 
regulate toxic emissions and greenhouse gases under the Clean Air Act. 
In 2012, he blocked the air pollution restrictions that covered nearly 
half of our country, endangering thousands of lives. This is especially 
concerning to those of us who live in downward States like Delaware, 
where over 90 percent of our air pollution comes from dirty emissions 
in States to our west that drift across our borders.
  When I was Governor, I could have shut down my State, taken every 
car, truck, van off the road, shut down every business, and we would 
have still been out of compliance for clean air requirements because of 
the upwind States putting their pollution up in the air, and it is 
simply blowing to Delaware or Maryland or New Jersey or any other State 
that happens to live along America's tailpipe on the east coast.
  Strictly based on Judge Kavanaugh's environmental record on the bench 
over the past 12 years, I was prepared to vote no on his nomination 
many weeks ago. Then last week the Senate and much of our country was 
riveted by compelling and, I believe, powerful testimony from a private 
citizen and a victim, Dr. Christine Ford. She came forward to share the 
most dramatic experience of her life.
  She stepped forward despite the serious threats it posed for both her 
and her family--death threats, having to move out of her house. She 
testified despite being terrified. She did so despite being unsure that 
her story would make any difference at all. She did so because she said 
it was her civic duty to share the truth. She showed a whole lot of 
courage.
  Like many of my colleagues, I have been contacted by sexual assault 
survivors since Dr. Ford's testimony who have been inspired to come 
forward and share their stories. It serves as further proof that this 
problem is not only underreported but that men and women who are 
victims of sexual assault can and do bury this trauma, not for weeks, 
not for months, not for years but for decades.
  Some of our Republican colleagues have acknowledged that Dr. Ford's 
testimony was credible, but despite her credibility, they say they 
don't see her testimony as reason enough to deny Judge Kavanaugh a 
lifetime appointment to the Supreme Court. They say they don't have 
enough evidence to believe her. Instead, they painted this as something 
of a he said, she said situation involving young people.
  Well, let's look at what he said then. Last week, Judge Kavanaugh, 
who currently sits on our Nation's second highest court, came before 
the Senate and unleashed a torrent of unbelievably partisan attacks. I 
have never seen anything like it in testimony before any committee I 
have served on or known of.

  He claimed that the allegations against him were fueled by ``pent-up 
anger about Trump and the 2016 election.'' He went so far as to say the 
claims were merely ``revenge on behalf of the Clintons.'' He threatened 
Democratic Members saying: ``What goes around comes around.''
  There is an old saying, adversity does not build character, it 
reveals it. Well, that day, Judge Kavanaugh revealed himself to be a 
partisan during that hearing. After witnessing the vitriol Judge 
Kavanaugh spewed, how could any left-leaning cause think they would 
ever possibly get a fair shake from him should their case come before 
the Supreme Court? His temperament was clearly unbecoming of a judge, 
let alone a Supreme Court Justice.
  What is perhaps even more disturbing is, it seems clear Judge 
Kavanaugh was willing to be so brazenly partisan in order to appeal to 
an audience of one watching the proceedings from 1600 Pennsylvania 
Avenue.
  Judge Kavanaugh's testimony last week also raised additional 
questions regarding his truthfulness. For weeks, my colleagues on the 
Judiciary Committee, including Senators Durbin and Senator Leahy, 
raised serious concerns that Judge Kavanaugh may have misled the 
Judiciary Committee about the extent of his role in the Bush 
administration helping several controversial judicial nominees navigate 
the Senate confirmation process.
  Judge Kavanaugh may have also misled the Judiciary Committee about 
the extent of his role in the Bush administration helping shape several 
controversial decisions in the wake of the September 11 terrorist 
attacks, including warrantless wiretapping and the rights of enemy 
combatants.
  During his most recent hearing about the allegations brought forward 
by Dr. Ford, Judge Kavanaugh answered several questions about his 
younger days in ways that were, at best, misleading and, at worst, lies 
under oath. Judge Kavanaugh's less-than-truthful answers on matters 
large and small point to a troubling pattern and raise serious 
questions about his credibility.
  Even if my Republican colleagues don't want to believe Dr. Ford, and 
even if they agree with Judge Kavanaugh's judicial record, the fact 
that he came before this body and so brazenly misled our fellow 
Senators should, I believe, by itself be disqualifying.
  Before coming to the Senate, I was privileged to serve, as you may 
recall, as Governor of Delaware for 8 years. In that role, I nominated 
dozens of men and women to serve as judges in several courts of 
national prominence--including the Delaware Supreme Court,

[[Page S6576]]

the Delaware Superior Court, and the Delaware Court of Chancery, to 
name a few. While the roles of those courts differed, the qualities I 
looked for in my judicial nominees were similar. I looked for men and 
women who were bright. I looked for men and women who knew the law. I 
looked for men and women who had good judgment, who are able and 
willing to make a decision, including a difficult decision. I looked 
for men and women with a strong work ethic. I didn't want to nominate 
somebody for tribunal chairman so I could watch them retire on the job.
  I looked for nominees who were collegial and able to build consensus 
in courts that had a larger panel, but there were three qualities that 
were most important to me: judicial temperament, impartiality--treating 
everyone before them fairly and not showing partiality--and, finally, 
truthfulness.
  In fact, in my first term as Governor, I denied a sitting Justice of 
the Delaware Supreme Court the opportunity to serve an additional 12-
year term because he lacked appropriate judicial temperament. I am told 
that was unprecedented, but his judicial temperament and what I thought 
was appropriate were not one and the same.
  It gives me no joy to say what I am about to say, but the temperament 
Judge Kavanaugh exhibited at the Judiciary Committee last week was not 
just unacceptable for a Supreme Court Justice, it would be unacceptable 
for a judge in Delaware serving on the Delaware Court of Common Pleas.
  Last week, in an effort to actually get to the truth and ensure that 
body could have all the facts before taking such an important and 
consequential vote, my Delaware colleagues and I called for the FBI to 
conduct a nonpartisan investigation. Unfortunately, what we ended up 
with falls far short of what the Senate deserves and certainly what the 
American people deserve.
  What we got was a process that was certainly not designed to inform. 
If this process was designed to inform, the White House and Republicans 
would have actually allowed the FBI to speak to the more than 40 
individuals whose names Dr. Ford and Ms. Ramirez submitted as people 
who could potentially corroborate their accounts. The FBI never talked 
to any of those people.
  If this were a process designed to inform, the dozens of individuals 
who contacted the FBI to share potentially helpful accounts and 
information would have received calls in response to those concerns; 
they did not.
  If this process were designed to inform, the White House and Senate 
Republicans would have allowed the FBI to expand the scope of this 
investigation; they did not.
  If this process were designed to inform the majority leader, he would 
have at least waited to schedule a vote on Brett Kavanaugh's nomination 
until after we received and read the FBI report; he did not.
  Sadly, this process has been a sham from the start. I know our 
Presiding Officer is proud to hail from the State of Louisiana. I am 
equally proud to hail from the First State. As you may know, we are 
called the First State because we were the first State to ratify the 
U.S. Constitution--the longest living, most emulated Constitution in 
the history of the world.
  One of the fundamental reasons our Constitution and our democracy has 
endured is because of the intricate system of checks and balances our 
Founding Fathers crafted just up the road in Philadelphia some 231 
years ago.
  The process we have been through in the last several weeks, 
unfortunately, makes a mockery of that system of checks and balances. I 
believe we all must recognize that, to use the majority leader's words, 
``plowing through'' with Judge Kavanaugh's nomination will diminish the 
credibility of the Supreme Court as an institution that stays above the 
political fray. In fact, confirming Judge Kavanaugh will enshrine doubt 
in every controversial 5-to-4 decision in our moving forward from this 
time. It also calls into question the legitimacy of us, of this very 
Chamber.

  Let me say to my colleagues who are still wavering on Judge 
Kavanaugh's nomination--and I will leave you with this--that we will 
not only be judged by voters this November; we will be judged by 
history. We say that a lot. Sometimes it is trite and overstated. In 
this case, it is not. We are going to be judged by history in this 
regard.
  I would implore each of you who is still thinking this through, who 
is trying to figure out what is the right thing to do, to show that we 
are still worthy of being called the world's greatest deliberative 
body. Let's show that we have made progress since 1991 in a previous 
Supreme Court nomination-confirmation episode. Let's show that we are 
willing to take a stand and do the right thing because if we are not, 
any short-term political wins will be forever eclipsed by the permanent 
stain left on our legacy in this body from which there may be no 
recovery.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. INHOFE. Will the Senator yield?
  Mr. BLUNT. I yield to the Senator.
  Mr. INHOFE. Mr. President, at the conclusion of the remarks of the 
Senator from Missouri, I ask unanimous consent that I be recognized for 
such time as I may consume.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BLUNT. Mr. President, I want to talk a little bit about what my 
good friend from Delaware talked about with regard to our being judged 
by history. Some of what I want to talk about today is of the history 
of this system and of others who have served.
  I have read several times in the last 30 days, particularly, that the 
Democrats feel they can do anything because of the way Merrick Garland 
was treated. I don't think there is any comparison between the way 
Merrick Garland was treated and the way Judge Kavanaugh has been 
treated. The only comparison I can think of is that they are both on 
the DC Court of Appeals and that they have both said very kind things 
about each other, but there is no comparison.
  Merrick Garland was nominated in the last year of a Presidency. The 
last time someone was put on the Supreme Court who was nominated in the 
last year of a Presidency was in 1932. The last time that happened was 
in 1932. The last time someone went on the Supreme Court when the 
President was of one party and the Senate was of the other and when it 
was a Presidential election year was in 1888. There is no comparison.
  In fact, Vice President Biden--then-Senator Biden--said on June 25 of 
1992, in what turned out to be the last year of the Bush Presidency: If 
there is a vacancy, there will be no hearing until after the election.
  There was not a vacancy, by the way. They were just putting that 
historical marker down that if there were a vacancy, there would not be 
a hearing until after the election. Of course, that meant there would 
not be a hearing that mattered. Unless the President were to be 
reelected and the majority in the Senate were to stay the same, there 
would be no reason to assume there would be a judge appointed by this 
President this year.
  Senator Schumer said in July of 2007, in his not wanting to wait 
until election year but just wanting to put his position on the table 
even earlier in the last year of another Bush Presidency, that we 
should not confirm any Bush nominee--I think he meant--from that moment 
on. As a matter of fact, he did say we shouldn't confirm any Bush 
nominee from that moment on except in extraordinary circumstances. I am 
sure he didn't mean one vacancy on the Supreme Court would be an 
extraordinary circumstance but a circumstance that would be dealt with 
just like Judge Garland's was dealt with, and people were heard. Yet 
that is not what this is about, and it sets no precedent any more than 
Senator Biden or Senator Schumer set a precedent that should have been 
a surprise for anybody.
  So what do we have with Judge Kavanaugh as we decide in the next few 
hours or in the next day or so whether he becomes Justice Kavanaugh?
  This was the seventh background check of this judge by the FBI. There 
had never been a more extensive review of a Supreme Court nominee--
seven times in slightly more than a dozen years--in going through this 
background check.
  More than 150 people had been interviewed.
  He had 36 hours of testimony before the Senate, during which you and 
others on the Judiciary Committee could

[[Page S6577]]

have asked him anything you had wanted to ask.
  He had 65 private meetings with Senators, during which they could 
have asked him everything they wanted to ask--including, by the way, 
the ranking member on the Judiciary Committee, who had had this 
information available to talk about.
  More than 500,000 pages of executive branch documents had been 
provided--more than for the last 4 nominees. Of all of his opinions as 
a judge and of all the cases he was part of, there were about 300 of 
those. By the way, that is the best way to look at what kind of judge 
he would be.
  He was asked over 1,200 questions for the record. That is like, after 
you have asked all of the questions you could publicly think of, then 
one has about a week to answer any questions that have been submitted 
for the record. He had 1,200 questions submitted for the record that he 
had to answer in that short period of time.
  There were three confidential calls with the committee.
  Then, last Friday, our colleagues decided--and I think, as it turned 
out, maybe wisely so--to do one more final FBI review of whatever they 
might not have asked about in the other seven FBI interviews that had 
occurred over the years. The outside number was 1 week. A week ago, 1 
week was what was going to be plenty of time. I think some Members in 
the minority at that time said: Well, maybe even 3 or 4 days. That is 
what it took with the Clarence Thomas hearing. By the way, that was 
before these issues became public, because it was turned over to the 
FBI like it should have been, and in 3 or 4 days, they had talked to 
everybody they could talk to. So, last week, 3 or 4 days might have 
been enough, but certainly a week would have been enough, according to 
the other side. Of course, that was never going to be the case. A week 
was never going to be enough.
  By the way, in background checks, when you are asked to be part of 
that--if it is your background check--one of the questions you are 
asked is, are there any drinking problems? Are there any drug problems? 
He had been asked that over and over again. I think anybody who is 
interviewed is always asked, do you know of any problems like that?
  Usually, a question is, Have you ever heard of anything that we would 
be interested in if we had heard about it?
  Another question often is, Would you tell us three people whom we 
might not have talked to who might know something about Judge Kavanaugh 
that we should know?
  Over a decade and a half, there have been 7 FBI interviews and 150 
people interviewed, the behavioral question, the drinking question, the 
drug question, which hasn't come up as far as I know, but it is always 
asked. It has been asked over and over again.
  Then you and I and Senator Inhofe went the other morning to hear a 
review of this last set of interviews, wherein people who possibly 
would have been able to corroborate something were interviewed and 
couldn't corroborate it. In many ways, the case got weaker as that 
moved forward, but we heard that.
  Then I heard that afternoon that Senator Schumer said that this is 
full of hints of misconduct. So I went back this morning and looked 
through the six prior background checks, and I looked through this 
background check. As it turns out, I agree with Senator Grassley, who 
said there was no hint of misconduct.
  If there had been a hint of misconduct in the previous five, he would 
have never been nominated. If there had been a hint of misconduct in 
the sixth one, he wouldn't have been nominated. It wouldn't have 
sustained itself. If you look at the pages that are new, there is none 
there now. So you can say anything you want to say. You can say it is 
not time enough. You can say, even though no witness ever saw any of 
these events, you just haven't talked to enough people yet, even though 
you have talked to everybody who has been mentioned, as far as I know, 
with any credible charges.
  So here we are. Now it is temperament. I don't think there are many 
Senators who would not have had his same indignation in being accused 
of something that he, without equivocation, swore did not happen, not 
only in those instances but in any other instance.
  It took 43 days for Ruth Bader Ginsburg to be confirmed. We are at 
about 83 days, or something like that, now. I looked up a couple of 
articles just to refresh my memory. When she shows some fire--and she 
has plenty of it, and I admire that--the description of her is her 
``well-known candor.'' That is how you describe it when Justice 
Ginsburg has her own opinion, like what she said about the Republican 
nominee last year: He is a faker. He has no consistency about him. He 
should withdraw. She said: I can't imagine what this place would be and 
can't imagine what the country would be with Donald Trump as our 
President.
  Now, is that a temperament issue, or is that too political?
  By the way, I am not offended by political. The Court never was 
either. John Marshall, one of the great Justices of the Court, was the 
Secretary of State for the person who appointed him. Earl Warren, who 
certainly set a standard for the Court, had never been in any public 
office except politically elected office before he became the Chief 
Justice. When he joined the Court in 1953, there were three former 
Senators sitting on the Court. There were two former Attorneys General 
sitting on the Court. Both had been appointed by the Presidents for 
whom they had been Attorneys General. Elena Kagan was the principal 
lawyer for President Obama. Yet, suddenly, political becomes a problem 
or temperament becomes a problem.
  Thurgood Marshall said while he was on the Court--by the way, I 
admire him in so many ways. I admire Thurgood Marshall's work and what 
he did as a lawyer, and the decision that President Johnson made was 
clearly historic.
  As a Justice, Thurgood Marshall said: I wouldn't do the job of 
dogcatcher for Ronald Reagan.
  About President Bush, while he was still a Justice, Thurgood Marshall 
said: It is said, if you can't say something good about a dead person, 
don't say it. Well, I consider him dead.
  Obviously, he considers him dead and takes the first injunction that 
he doesn't have anything to say, but there is nothing wrong with people 
on the Court having opinions.
  In this case, we have a judge for whom you could look at 12 years of 
judging, and you could look at 300 opinions, and you could look at his 
law school classes he taught. There is plenty to look at. It all, I 
believe, leads to a couple of conclusions:
  One, the way this nomination has been treated has been outrageous. I 
think my good friend who spoke before said he had never seen anything 
like it. Well, there has never been anything like this: Hold on to 
information that can't be corroborated. Only release it after it is 
clear that the judge has the votes to be confirmed and when you want to 
do, as the majority leader said, anything you can possibly do as the 
minority leader to slow down and stop this nomination.
  We have plenty to look at here. We cannot set a standard of guilty 
until proven innocent because then anybody can make any charge at any 
time, particularly when there are many reasons to believe that there is 
nothing in 7 background checks, that there is nothing in 150 
interviews, that there is nothing in a very visible public career to 
ever suggest that Judge Kavanaugh is anything different from what he 
said he was and those of us who will vote for him believe him to be.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. INHOFE. Mr. President, before the Senator from Missouri leaves, 
confession is good for the soul, and I want to share something that 
will shock him, which is that there are a number of things that I did 
when I was in high school and in college that are not very prominently 
displayed in my campaign material. So, there, I have said it.
  We had a vote this morning, but a lot of people who have been on the 
phone today have not really been sure what we did with that vote this 
morning. We had the vote this morning because we had to move forward in 
order to have the final consideration of this great nominee 
tomorrow. It was filibustered by the Democrats, and, of course, we had 
to do a cloture vote. I know this is somewhat in the weeds here, but 
that is what we have to do. That vote took place.

[[Page S6578]]

  At some time tomorrow we will actually have this vote. I start by 
saying that I am enthusiastically a ``yes'' vote tomorrow. I think that 
goes without saying.
  I met with Judge Kavanaugh in my office back when he was first 
nominated. In fact, I have studied him before. I remembered him when he 
was nominated the first time, about 6 years ago, and I talked to him at 
that time. I thought: Well, has he really changed that much? Is it 
necessary? I even said: It is really not necessary; I have followed his 
career and all of that. But he came by anyway.
  The things that I like--and I am not a lawyer--are the things that he 
did that show him as a human being, more than just a nominee to be a 
Justice on the U.S. Supreme Court--the human things that he did. I know 
for a fact because I talked to her--one of his good friends who died 
had a wife and two girls, like his two girls. When back-to-school night 
comes, he takes those two girls with his to back-to-school night. This 
is the type of thing he does.
  We have heard all of the warm things about what he has done as a 
coach and other things. That is the human being I know. Meeting with 
him wasn't necessary because I was sold on him anyway after looking at 
his record.
  On the eve of Kavanaugh's nomination, heading toward certain 
nomination, we were hit by a bomb. It was an uncorroborated attack that 
the Democrats sat on for 2 months. That is critical. You have to stop 
and think about that. Why would they take something they thought was so 
important to destroy this fine man and wait for 2 months and sit on it? 
I am surprised they didn't let it slip. It is just because they wanted 
to make sure people were talking about it.
  The details of the allegation were of the worst kind--an aggressive, 
ugly sexual attack.
  Sexual assault and violence is wrong, period. It is wrong, and so 
many women who experience sexual assault and harassment do not feel 
empowered to come forward even years later--maybe never.
  It is also unjust for someone to be accused of a crime that he or she 
did not commit and be convicted in the court of public opinion without 
any evidence or corroborated accounts.
  It is hard to wrap your head around the fact that someone who has 
been in the public eye for decades, respected by his colleagues, his 
law clerks, his students, his friends, his family--everyone--and never 
had a whisper of wrongdoing in all of those years, and all of a sudden 
he is accused of such a heinous crime.
  Like many Americans, I watched the hearing last Thursday in the hope 
that it would provide more clarity and some answers, and I think it 
did. It would be easy to get wrapped up in the conflicting media 
coverage and all the spin and so on; instead, I looked at what we know 
to be true--what we know to be true.
  The people Dr. Ford places at the scene that night have either denied 
the events or do not recall any party or gathering that matches her 
description, so that is an idle accusation.
  Her lifelong friend--in fact, some people characterize her as her 
best friend--is a person Dr. Ford named in her allegations as the only 
other girl at that small gathering. So here is a small gathering; she 
is accusing him of this behavior. There was one other girl there, and 
the other girl says that she does not know Brett Kavanaugh and has 
never attended a party where he was there. It can't be more definite 
than that, and that is from her best friend.
  When Dr. Ford's testimony is compared to other statements that she 
made to her therapist, to the Washington Post, to the ranking member, 
and her statement for the polygraph exam, there are various 
inconsistencies that should not be ignored.
  Dr. Ford's inability to remember key details of the alleged attack--
things like the date, the place, and other circumstances surrounding 
the event--places Judge Kavanaugh in a difficult position to defend 
himself as Democrats and the media unjustly shift the burden of proof 
from the accuser to the accused. I don't remember that happening 
before. This is still America.
  From the beginning, Judge Kavanaugh has categorically denied the 
accusations and has not wavered or equivocated on this point.
  He has cooperated with the Judiciary Committee's investigation--that 
is Senator Grassley's committee--every step of the way, including 
speaking with committee staff under oath several times over the course 
of the last couple of weeks and providing documentation to help clear 
his name. He has done it all. Everything we have asked of him, he has 
done.
  On the other hand, Dr. Ford's attorneys have refused to turn over key 
evidence that her testimony relied on to corroborate her claims: her 
therapist's notes that were shown to the Washington Post but not to the 
committee, messages she exchanged with the reporter, the documentation, 
and the recordings related to the polygraph test she took in early 
August. They were refusing to turn over key evidence. They didn't have 
any evidence they could turn over, so no wonder there are no witnesses 
who can corroborate the accusations that have been made against this 
fine man.
  I am not going to go into the other allegations. There are two others 
that came along.
  The timing of this is kind of interesting. First of all, they 
withheld this document that Dr. Ford had for 2 months. It is hard to 
keep a secret around this place, and I am surprised that didn't come 
out. They did it for a purpose. What do you think that purpose was? 
What other purpose could it have been, other than they were waiting for 
the last minute to come out with something that was never discussed 
before? No other accusation had been made. That is what happened.
  Based on the totality of what we know, to condemn anyone for an 
offense that has been denied and not proven--I would caution anyone 
against doing the same thing.
  John Adams, our second President of the United States, wrote--now 
listen to this--``But if innocence itself is brought to the bar and 
condemned, perhaps to die, then the citizen will say `whether I do good 
or whether I do evil is immaterial, for innocence itself is no 
protection,' and if such an idea as that were to take hold in the mind 
of the citizen that would be the end of security whatsoever.'' That is 
what he said.
  Let's look at what Scripture says. Numbers 35:30 says:

       If anyone kills a person, the murderer shall be put to 
     death on the evidence of witnesses. But no person--

  No person--

       shall be put to death on the testimony of one witness.

  Think about that. That is a direct violation of what they are trying 
to do.
  So you have Adams, you have the Bible, and then there is our judicial 
system. It is reflected in our judicial system as well: innocent until 
proven guilty. It is more than just a phrase; it is a cornerstone of 
the rule of law since before our founding, and its wisdom has been 
borne out time and again throughout history: Innocent until proven 
guilty.
  That is really what is on trial here: innocent until proven guilty. I 
have never seen this happen before, and I have been around for a long 
time. It cuts through the drama and focuses on the facts. That is why I 
continue to support Judge Kavanaugh's confirmation.
  Judge Kavanaugh's name has been unjustly run through the mud by these 
subsequent allegations that even the New York Times did not deem fit to 
print and that were brought forth by a known publicity seeker with an 
ax to grind against the President, looking for nothing but attention 
and more fame for himself
  I am dismayed that my colleagues on the other side of the aisle have 
taken these uncorroborated and fantastical allegations at face value 
and run with them. I feel the Democrats showed their hand in the days 
since last week's hearing when the agreement on the supplemental FBI 
background investigation was made. The narrative has shifted from 
allegations of sexual misconduct to ones of judicial temperament, as my 
friend from Missouri pointed out.
  I am not a lawyer, but everyone knows the saying that if the law is 
on your side, argue the law. If the facts are on your side, argue the 
facts. If neither the facts nor the law are on your side, pound the 
table. That is what we are hearing right now. The difference here is 
that the Democrats are trying to outdo each other in pounding the 
table.

[[Page S6579]]

  They know the allegations are not proven. They know that Judge 
Kavanaugh remains committed to his innocence and the process, and they 
know that Republicans will remain committed to the facts, so they must 
change tactics, move the goalpost one more time, and attack him on 
other grounds.
  The first of these is to question his temperament. Because he 
defended himself, his family, career, and his name so forcefully and 
passionately, he did not demonstrate the calm, measured, and detached 
demeanor that one should expect of a judge. Well, the problem with this 
characterization is that it ignores the fact that Judge Kavanaugh was 
not a disinterested party while hearing the arguments of opposing 
counsel. He was the subject of the accusations, and it was he who was 
being attacked and condemned. There is a big difference there.
  I dare anyone to be calm and dispassionate if they had to sit by for 
10 days and watch and listen to everything they have worked for and 
have built over a long career of public service be torn down in an 
instant without any proof--without any proof at all--to see your high 
school yearbook picked apart by conspiracy theorists who seek nefarious 
meanings behind juvenile jokes and 30-year-old slang, to see your 
friends and family be threatened and harassed, and you can do nothing 
to stop the angry mob.
  This idea completely ignores the fact that Judge Kavanaugh has 
proved, over the 12 years that he has been on the bench of the second 
most powerful court in the country, that he does have the temperament 
we look for in our judges. This fact is supported by an ABA ranking of 
unanimously ``well qualified''--which is considered to be the gold 
standard for Democrats--and the countless testimonies by people across 
the political spectrum who have worked with him, who have argued a case 
in front of him, and who know him well.
  In the last few days, the discourse has further devolved into perjury 
claims based on the judge's drinking habits in high school and college. 
I will leave the legal arguments to those more knowledgeable than I in 
that department who have thoroughly debunked that particular myth. 
Suffice it to say, he testified that he liked beer. He drank beer, and 
sometimes he drank too much. He did some things in high school and 
college that maybe he now thinks he shouldn't have done, but that is 
what he did. He wasn't hiding anything when it came to drinking in his 
youth. He said that right up front in one of the earlier hearings.
  There were six background investigations by the FBI over the course 
of lengthy public service, decades in the public eye, and never has 
anyone brought any allegations or concerns to the attention of the 
investigators or the press in all of that time.
  I was here when he was up for the appellate judgeship, and none of 
this came up at that time. There is a difference here. I think the 
other side is--let's face it. The Democrats said at the very beginning: 
It doesn't matter who our President nominates to be on the Federal 
bench, we are going to oppose him. So here we have them opposing him.
  Well, with each new breathlessly reported account of a party, alleged 
ice-throwing incident, or juvenile jokes about passing gas or cussing 
from the early to the mid-1980s, it becomes clearer and clearer that 
Democrats are not serious in their concern about the more serious 
allegations as the focus of their attacks become more and more absurd 
and desperate.
  The fact that they have to focus on Judge Kavanaugh's school days 
further reinforces the idea that Brett has led an exemplary life as a 
husband, a father, and a public servant.
  I would like to take just a moment to commend my good friend from 
Iowa, the chairman of the Judiciary Committee. My wife called this 
morning, and she said: Be sure you single him out and sit him down and 
tell him how proud I am of him. My wife and I have been married for 59 
years, and when my wife is proud, I am proud.
  Once he was made aware of the allegations that the Democrats kept 
from him for weeks, he and his staff went right to work to investigate. 
They postponed the committee--this is the chairman we are talking 
about. They postponed the committee vote, gathered statements and other 
evidence, and offered Dr. Ford the opportunity to provide her testimony 
in any way that would be comfortable for her, eventually scheduling a 
follow-up hearing. All along the way, Dr. Ford and Judge Kavanaugh were 
treated by our chairman of the Judiciary Committee with the respect 
they deserve and should have received, starting when the allegations 
were first brought to our attention.
  He and his staff have kept us informed in the Senate of the various 
investigations at almost every step in the process. The chairman has 
built a well-deserved reputation for protecting whistleblowers. This is 
one of the things he has been outspoken about for a long time, and he 
has protected them over the course of his career. He has proven himself 
once again during this process.
  I look forward to voting for Judge Kavanaugh. I would hope that we 
could put an end to the search-and-destroy campaign that is being waged 
by the Democrats and their enablers and this media, but I won't hold my 
breath.
  Thank you, Mr. President.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Boozman). The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Ms. HIRONO. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. HIRONO. Mr. President, I rise today in opposition to the 
nomination of Brett Kavanaugh to the Supreme Court of the United 
States. Based on an in-depth examination of his legal career, academic 
writings, and judicial record, I conclude that he has a long pattern of 
misstating facts and misapplying the law in order to further his 
partisan political agenda.
  His partisan, ideologically driven agenda is particularly troubling 
in cases involving women's intimate personal decisions.
  Roe v. Wade and its progeny represent an acknowledgment in American 
law and life that women ought to have control over whether and when to 
bear children, but it is more than that. As Justice O'Connor explained 
in Casey v. Planned Parenthood, ``It is a promise of the Constitution 
that there is a realm of personal liberty which the government may not 
enter.''
  The Supreme Court's jurisprudence on reproductive rights is based on 
case law going back decades that has assured Americans the right to 
educate their children as they see fit; to marry anyone, no matter 
their race; and to decide whether to use contraception inside or 
outside of marriage. It is part of a jurisprudence of privacy and 
autonomy that became a bedrock of American society that we have all 
relied on to create families, choose professions, and raise children. 
But Brett Kavanaugh, through his political choices and affiliations, as 
well as his legal and judicial writing, has told us loud and clear that 
he does not respect a woman's right to make her own intimate, personal 
decisions and will do whatever he can, once confirmed, if confirmed, to 
narrow and overturn Roe v. Wade.
  A recent speech Kavanaugh delivered gives us further insight into his 
own legal views on the topic. In 2017, at the American Enterprise 
Institute, Kavanaugh gave a speech in tribute to the late Chief Justice 
William Rehnquist. In his remarks, Kavanaugh praised Rehnquist's 
dissent--dissent--in Roe v. Wade where the late Chief Justice found no 
constitutional right to abortion because the right was not ``rooted in 
the traditions and conscience of our people.'' Thank goodness the rest 
of the Supreme Court did not follow Chief Justice Rehnquist.
  To learn about Brett Kavanaugh's own legal views on reproductive 
rights, we need only look at his dissent in last year's DC Circuit case 
Garza v. Hargan. Here, a 17-year-old undocumented immigrant sought 
release from government custody to obtain an abortion.
  Kavanaugh's first fundamental misstatement in this case was 
mischaracterizing it as a ``parental consent'' case. It was not. The 
young woman had already received a proper judicial bypass from a Texas 
judge and therefore did not need parental consent.

[[Page S6580]]

  For a judge applying for a promotion to the Supreme Court to 
completely misstate the issue in the case was astounding to me. In my 
view, a first-year law student would not have deemed the Garza case to 
be a parental consent case, but that is what he said.
  Then, when applying the legal test under Roe and Casey to determine 
whether the young woman's rights were being subject to an ``undue 
burden,'' Judge Kavanaugh would have ruled against her. He thought 
nothing of keeping a 17-year-old as a prisoner of the government Office 
of Refugee Resettlement instead of releasing her to get an abortion 
that was entirely within her rights to seek.
  Compare that to the ease with which Judge Kavanaugh found that 
religious employers, in the case of Priests for Life v. Department of 
Health and Human Services, were burdened by filling out a two-page 
form. The employers there were seeking to avoid paying for any 
employee's health insurance that covered contraception, saying it 
burdened their free exercise of religion.
  The majority of the DC Circuit held that asking the employers to fill 
out a brief form to let the government know of their objection was not 
a substantial burden, but Judge Kavanaugh disagreed and would have 
ruled to deny the female employees their proper health coverage, siding 
with the Priests for Life. Judge Kavanaugh's colleague on the DC 
Circuit went out of her way to write a concurring opinion to directly 
rebut Judge Kavanaugh's dissent and correct his misstatements of the 
case.

  To Judge Kavanaugh, holding a woman in government custody 
unnecessarily and against her will does not represent an undue burden 
on the exercise of her constitutional right to an abortion, but when it 
comes to a religious employer opting out of providing contraceptive 
coverage to an employee, a two-page form is too great a burden.
  The pattern of Judge Kavanaugh's views on the right to abortion is 
clear. Anyone who feels assured he will uphold Roe v. Wade is living in 
a fantasy world.
  Laws that narrow women's reproductive rights in States like Texas, 
Iowa, and Louisiana are currently making their way to the Supreme 
Court, and all evidence shows that Judge Kavanaugh will side with them. 
Advocates for women's reproductive rights are against Judge Kavanaugh's 
ascent to the Supreme Court with good reason.
  Another aspect of his judicial record that argues against 
confirmation is Judge Kavanaugh's pattern of dissents. Dissents are 
revealing. It is where judges go out of their way to voice their 
disagreement with the majority on the court to show what their views 
are. Judge Kavanaugh has the highest dissent rate among active DC 
Circuit judges at 5.1 dissents per year.
  One study I introduced at his hearing showed that he consistently 
sided against workers and immigrants and only once favored consumers in 
his dissents.
  Another study showed he consistently sided against protecting the air 
we breathe and the water we drink. So environmental and consumer rights 
groups are against Judge Kavanaugh's ascent to the Supreme Court with 
good reason.
  Yet another study analyzed his dissents and found that Judge 
Kavanaugh tended to dissent more often along partisan lines than his 
colleagues and his ``divisiveness . . . ramped up during political 
campaigns'' before Presidential elections. This is more than mere 
coincidence. It also found that he had the highest rate of what the 
study called ``partisan dissents''--where the other judges in the 
majority were appointed by the opposing party; in other words, by 
Democratic Presidents. Again, this is not the sort of fairminded 
consideration of the facts and the law necessary for a Supreme Court 
Justice.
  His partisanship was clearly on display for all to see at his 
Thursday hearing.
  For me, as a Senator from Hawaii, Judge Kavanaugh's pattern of 
misstating the facts and misapplying the law is evident in his work on 
the case of Rice v. Cayetano and the rights of Native peoples.
  President Trump has demonstrate through signing statements, budget 
proposals, and proposed regulations that he views programs for our 
indigenous communities as unconstitutional racial classifications, and 
he found a like-minded Supreme Court nominee in Brett Kavanaugh.
  Brett Kavanaugh has a long history of misstating facts and 
misapplying the law in order to curtail the rights of indigenous 
peoples--Native Hawaiians, Alaska Natives, and American Indians.
  As an attorney in private practice in 1999, Brett Kavanaugh 
coauthored a friend-of-the-court brief in support Harold ``Freddy'' 
Rice's challenge to the voting structure of the Office of Hawaiian 
Affairs--a State office established in Hawaii to work for the 
betterment of Native Hawaiians. Mr. Rice sued then-Governor of Hawaii 
Benjamin Cayetano, and the case made its way to the U.S. Supreme Court.
  Judge Kavanaugh coauthored his amicus brief with other highly 
conservative legal advocates, including Robert Bork--a harsh critic of 
the Civil Rights Act of 1964 when it was proposed. Judge Kavanaugh 
separately, in addition to working on this amicus brief, wrote an op-ed 
for the Wall Street Journal titled ``Are Hawaiians Indians?'' that made 
false and offensive arguments.
  In his op-ed and amicus brief, Judge Kavanaugh relied on incorrect 
facts and misstatements, ignoring obvious truths that contradict his 
position. He relied on these incorrect facts in order to reach his 
political conclusion that Native Hawaiians and arguably other 
indigenous communities who do not fit his limited view of Tribal 
structure are not afforded any special protections by the Constitution.
  He called OHA's voting structure into question under the 14th 
Amendment, calling it a ``naked racial spoils system.'' In describing 
the Native Hawaiian community, he went out of his way to ignore their 
history, cobble together blatant falsehoods, and call into question 
their status as an indigenous people.
  His op-ed argues that Native Hawaiians are not entitled to 
constitutional protections given to indigenous Americans because, as he 
put it, ``They don't have their own government. They don't have their 
own system of laws. They don't have their own elected leaders. They 
don't live on reservations or on territorial enclaves. They don't even 
live together in Hawaii.''
  Judge Kavanaugh is saying that Native groups in the United States 
derive their rights from having been herded onto reservations and 
cheated out of their land and that they surrender their rights when 
they move outside of these artificial boundaries. It is not only 
factually wrong but deeply offensive. Kavanaugh argues that an 
indigenous community must have its own government, system of laws, its 
own elected leaders, and live together on a reservation to be 
considered indigenous. By that, he means that only federally recognized 
Tribes in the lower 48 States are afforded any protections.
  After Judge Kavanaugh made his troubling and misleading arguments in 
the amicus brief and op-ed, the U.S. Supreme Court decided Rice v. 
Cayetano. They ruled that Hawaii's voting structure for the Office of 
Hawaiian Affairs violated the 15th Amendment's voting rights 
guarantees. The Supreme Court, in Rice, relied only on the 15th 
Amendment. It did not address the 14th Amendment argument Judge 
Kavanaugh made in his amicus brief, which claimed that the Office of 
Hawaiian Affairs' voting structure was an unconstitutional ``racial 
voting set-aside.'' But Judge Kavanaugh and his conservative allies 
continued to misstate and misconstrue the holding in Rice for their own 
political purposes.
  In the Bush White House, Judge Kavanaugh continued to misapply the 
law in Rice to argue that Native Hawaiians could not be the 
beneficiaries of targeted programs, when clearly the case stands for a 
much narrower proposition having nothing to do with government 
benefits.
  In fact, the Supreme Court declined to address Judge Kavanaugh's 
question of whether the Office of Hawaiian Affairs' voting structure 
could be an unconstitutional, race-based classification under the 14th 
Amendment.
  In one email, when he was in the Bush White House, Kavanaugh wrote: 
``I think the testimony needs to make clear that any program targeting 
Native Hawaiians as a group is subject to strict scrutiny and of 
questionable validity under the Constitution.''
  In another, he wrote: ``White House Counsel objects and raises 
questions

[[Page S6581]]

about the constitutionality of this bill, including but not limited to 
the portions that refer to Native Hawaiians. See Rice v. Cayetano.''
  At his hearing in front of the Judiciary Committee, when I asked him 
about his misapplication of the law, Judge Kavanaugh again misstated 
the holding of Rice and refused to correct his misstatement when I 
asked him to clarify. He testified before the Judiciary Committee that 
Rice ``was a straightforward violation of the 14th and 15th amendments 
of the U.S. Constitution.'' He was wrong, but when I pressed him on 
this point and asked him to show me where the majority decision in Rice 
cited the 14th amendment, he refused to answer. Why? Because he was 
clearly wrong.
  It is deeply troubling to have a Supreme Court nominee for a lifetime 
position who doesn't adhere to facts or correctly present the law. 
Judge Kavanaugh's answers on this topic fit his pattern of evading and 
skirting the truth.
  His reliance on these stereotypes and bigoted tropes about Native 
Hawaiians, as well as his misapplication of the law, represent a clear 
and present danger to Native people all over this country, including in 
Hawaii.
  Notably, in his writings against Native Hawaiians, Judge Kavanaugh 
completely avoided any reference to the Alaska Native Claims Settlement 
Act, ANSCA. Under ANSCA, Alaska Natives organized themselves not as a 
tribe in Judge Kavanaugh's understanding of the word but as village and 
regional corporations with shares that individual Alaska Natives hold. 
This is a novel and unique system for facilitating the U.S. trust 
responsibilities and arguably not at all in keeping with what Judge 
Kavanaugh believes deserves constitutional protection. That is why 
Native communities across the country, including the Office of Hawaiian 
Affairs, Council for Native Hawaiian Advancement, Alaska Federation of 
Natives, and the National Congress of American Indians have come 
together to express deep concern over Judge Kavanaugh's nomination.
  In the context of his views on Native peoples, I no longer find it 
curious that Judge Kavanaugh devoted so much time back then to writing 
an amicus brief and an op-ed on a case that involved Native Hawaiians.
  I will have more to say tomorrow about other aspects of this 
nomination--in particular, what Dr. Christine Blasey Ford's account of 
her attack by Brett Kavanaugh reveals about the nominee, the Senate, 
and the American culture.
  For now, I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Ms. HARRIS. Mr. President, I ask unanimous consent to enter into a 
colloquy with my colleagues, the Senators from Washington and 
Connecticut. I also ask to be notified when we have used 45 minutes of 
the Democrats' time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. HARRIS. Mr. President, given the serious and troubling 
allegations against Judge Brett Kavanaugh, I am deeply disturbed that 
the Senate is moving forward with this nomination.
  When it was announced that the FBI could investigate these serious 
and credible allegations, I had hoped there would be a legitimate 
investigation. As the former Attorney General of California, I have 
tremendous, tremendous respect for the sworn law enforcement officers 
at the FBI. This should have been a search for the truth. They should 
have been allowed to do their full job, but instead, the White House 
did not allow it. This was not a search for the truth. Instead, this 
was about politics and raw power to push through an unfit nominee.
  I am a former prosecutor. I have led investigations, and I have 
prosecuted all types of crime--particularly violent crimes, including a 
specialization in sexual assault cases--as a prosecutor. I have tried 
these cases in a courtroom. I have spent hours--hours--with assault 
victims, and I can tell you that when we look at what happened during 
the course of these days--these few days--in reviewing and giving 
regard and respect to Dr. Ford, we have fallen short. We have fallen 
short.
  Sixty-three percent of sexual assaults are not reported to the police 
in our country. Delayed reporting is normal. I will tell you that when 
I was personally prosecuting sexual assault cases, we would be in a 
courtroom. I would be there as the prosecutor, with the accused, the 
accused's attorney, a judge, and a courtroom full of prospective 
jurors, and we would engage in a process called voir dire, where we 
would talk with prospective jurors to determine if they would be able 
to sit as a juror and, without bias, listen to the case and then make a 
determination about the facts and the law.
  I cannot tell you the number of times, colleagues, that a prospective 
juror would raise their hand and ask could they quietly speak with me 
and the defense attorney and the judge in the judge's chambers outside 
of the courtroom and outside of the sight and the ability for anyone 
else in the courtroom to hear. We would go into the judge's chambers, 
and I cannot tell you the number of people who would sit in a chair, 
and, with tears in their eyes, tell us that they had been a victim of 
sexual assault and had never told anyone, not even their spouse, but 
because of what they had experienced, they knew they could not possibly 
sit in a courtroom and hear the testimony they knew would come related 
to the charges they knew the case was about.
  This is an issue that impacts so many Americans, most of whom don't 
report it and don't tell anyone, and usually when they do, it is 
because something precipitated the telling of their story that was 
beyond the time during which they endured the assault itself.
  Dr. Ford's experience in this regard is no different from the 
majority of sexual assault victims, and she should be believed. I know 
what it means to engage in an investigation and a search for the truth, 
having been a part of investigations to determine what has happened 
and, in particular, if a crime has occurred.
  Now, let's be clear about one thing. There has been a lot of 
conflation around here about the subject and the need for an 
investigation into Dr. Ford's allegations. Ours was not a search to 
determine whether a crime occurred. Ours was not a search to determine 
whether we had enough facts to prove beyond a reasonable doubt that a 
crime had occurred. No. Ours was an investigation to figure out enough 
about what happened to determine if Brett Kavanaugh is fit to serve on 
the highest Court in our land. Is he fit to be a jurist in the place 
where we have said justice in our country occurs, in the house where we 
listen to evidence and truth and make determinations based on the 
veracity and truthfulness of what has occurred? That is our role when 
it comes to Dr. Ford's allegations, and we fell short. We fell short. 
We did not do her justice, and we did not do the American people 
justice.
  We were given 1 week to investigate. The Republicans said: You will 
get 1 week. They threw out 1 week--an arbitrary amount of time--and in 
less than 1 week we were presented with paltry documents. Clearly, when 
the White House directed the FBI to do its work, it appears from 
everything I have seen, the FBI was not permitted to look at all of the 
allegations. That is clear to me. It is clear the White House did not 
permit the FBI to request Mark Judge's Safeway employment records. It 
is clear, from everything I have seen, the White House did not permit 
the FBI to investigate the dishonest testimony of Brett Kavanaugh or to 
examine and listen to the evidence that would have been provided by a 
list of over two dozen witnesses who would have been, at the very 
least, able to corroborate or deny the allegations that were made. This 
was not a meaningful investigation into the allegations that are before 
us, and this, most importantly, was not a search for the truth.
  Media outlets have reported that there are more than 40 people with 
potential relevant information who are willing to share their 
information but only 9 people were interviewed. This is a travesty. 
They did not interview the Georgetown Prep alumni or others from that 
era who contradict Kavanaugh's testimony. They did not interview Dr. 
Ford's husband or a number of her friends who she told of the assault 
before--before--Kavanaugh's nomination. They did not interview the 
former FBI special agent who conducted Dr. Ford's polygraph. They did 
not interview Kavanaugh's roommate at Yale who has contradicted 
Kavanaugh's testimony. They did not

[[Page S6582]]

interview another one of Kavanaugh's neighbors in the dorm at Yale. 
They did not interview three of Kavanaugh's friends from Yale who wrote 
in the Washington Post just last night:

       Brett also belonged to a Yale senior secret society called 
     Truth and Courage. We believe that Brett neither tells the 
     former nor embodies the latter.

  They did not interview Dr. Ford at all--they did not interview Dr. 
Ford at all. They did not give her the ability to speak her truth 
during the so-called investigation, and they did not interview Judge 
Kavanaugh about these allegations.
  This was not a search for the truth. This was not an investigation. 
This was an abdication of responsibility and duty. This is on the heels 
of a process that began with hiding more than 90 percent of Judge 
Kavanaugh's record. We only received approximately 400,000 pages out of 
an estimated 6.9 million pages of documents. The Republicans have been 
saying: You should be happy you received thousands of pages of 
documents because they want us to treat crumbs on the table like it is 
a feast. These were crumbs on the table compared to the vast amount of 
information that is available to some about his background.
  This process has left the American people with more questions than 
answers. This has not been a search for the truth.
  The minimum standard for a Supreme Court nominee should be someone 
who we are confident will demonstrate impartiality, integrity, and 
truthfulness, but the nominee we are voting on has not demonstrated 
those qualities.
  Every American is entitled to the benefit of the doubt, but nobody is 
entitled to a seat on the U.S. Supreme Court.
  I yield to my colleague Senator Murray.
  Mrs. MURRAY. Mr. President, I thank the Senator from California for 
very clearly outlining, for all of us to hear, why this was not a 
search for truth on an issue that affects so many people in this 
country, the victims of sexual assault who often, as she just 
described, do not talk about it, do not speak about it, do not ever 
tell anyone until there is a reason to, which is what Dr. Ford did.
  While the Senator from California is here, you said this was not a 
search for truth. When it comes to victims of sexual assault--and you 
have dealt with them time and again as a district attorney and attorney 
general in the State of California--what message does this send when 
they see the U.S. Senate?
  Ms. HARRIS. Senator Murray, you and I have talked about it. We all 
talked about it. Part of the pain of this process is a real concern 
that sexual assault victims and survivors may take away from this 
process that their stories will not be heard or believed. Part of the 
pain I am taking away from this process is those who have a story to 
tell or might have been prepared to have the courage to report may 
decide: Look what happened to Dr. Ford. It doesn't matter. No one will 
believe me, and why should I go through that?
  I have to say this. You and I have discussed it, and Senator 
Blumenthal and I have discussed it together. Part of what we must 
message--even if our Republican colleagues will not--is to all of the 
women and men out there who have experienced this: We will hear you. We 
will see you. We will respect you. We will give you dignity. Speak your 
truth. Do not be afraid. Do not let this system or any aspect of it 
bully you into silence.
  It is critical we talk about this issue. I believe this is an issue 
right now that is where the issue of domestic violence was about 30 
years ago. There was a perception about domestic violence I hope we 
have gotten beyond. There was a perception about domestic violence: Oh, 
you know, what happens in the King's castle is the King's business. 
That is private business. That is not our business.
  Then we evolved as a society and realized, no, she is walking around 
with a black eye or a busted lip; that is everybody's business. She 
deserves to be safe, and we must stand up for her. I believe this is an 
inflection moment on the issue of sexual assault, and I hope and pray 
this is a moment where everyone will agree, no one should silently 
suffer. Let's talk about this. Let's talk about the fact that every 98 
seconds in the United States of America, someone is sexually assaulted. 
Let's talk about the fact that 63 percent of sexual assaults are not 
reported to the police. Let's talk about the fact, since Dr. Ford had 
the courage to speak out, one of the biggest national organizations 
that addresses sexual assault saw a 738-percent increase in the calls 
they received from survivors of these cases.
  Mrs. MURRAY. I thank the Senator from California, and I so agree. 
This is one of my biggest fears about this moment. Let me talk about 
why that is true. I was a mom at home in 1991. I was a State senator 
but not interested in what was happening here at all. My interest came 
because I watched the Clarence Thomas-Hill hearings, and I watched how 
a woman shared a very difficult story with an all-male panel of the 
Judiciary Committee at the time. She was disbelieved. She was swept 
aside. She was treated as if her voice wasn't important, and she was 
not believed.
  I was so angry as a woman because like so many women in this country, 
I knew of so many people with experiences much like hers who, too, at 
work at that time had been dismissed, not believed, and were afraid to 
speak up. I was angry, and I went to a gathering that night and told 
some of my friends in 1991, the night of the hearing, I am going to 
have to run for the U.S. Senate because I need to be inside that to 
speak up for these women.
  That is what motivated me to run. I was not given one chance of 
winning that Senate race. Here I am today, 27 years later. Why? Because 
so many women and men who understood shared that experience and knew 
that voice needed to be here. That is what brought me to the U.S. 
Senate.
  Let me talk about Dr. Ford because I listened to her, like everyone 
else did, and I heard her voice and it rang so true to me. I watched 
her with tears in my eyes because she was honest, she was sincere, she 
was persuasive, she was credible. She had no reason to lie--none. In 
fact, I think we should remember, she did not want to come forward 
initially. She was worried about the attacks that would come. She knew 
the history, as every one of us do, what happens to those courageous 
voices when they speak up, the invasion of privacy they have. She knew 
what it would mean for her family.
  She only came forward when Judge Kavanaugh was on the very short list 
for the Supreme Court, before he was ever sent to us. She came forward 
and spoke out, but no one called her. She didn't want to do it 
publicly. She didn't want to have this become what she was known for in 
her life, but she did. If it weren't for her, we would not be at this 
point.
  Judge Kavanaugh was selected, and only then was Dr. Ford able to get 
her information to the people who would pay attention. She insisted it 
be kept confidential, to none of our surprise. She didn't want a 
spectacle. She didn't want a show. Why did she do that? She felt it was 
her civic duty that we as U.S. Senators--who were giving, essentially, 
a job interview to a man who wanted a position on the highest Court of 
the land and would be judging people in front of him--should know what 
his character was.
  Her story was compelling. She took a polygraph test. She did 
everything right. She had told people before. She presented her case 
credibly. It is extremely disconcerting to me, as someone who watched 
the Clarence Thomas-Hill hearings and is sitting here, that I have 
heard people dismiss her, put her down, all the way up to the President 
of the United States. What message does that send across the country 
today and to other women who are so bravely now telling their stories 
so it will not happen to anyone else? What does this say to them? What 
does it say to young girls in high school and college today? They are 
going to get away with it, so be quiet because it will only ruin your 
life, not theirs.
  I have heard my colleagues say: Well, it was high school, it was 
college.
  Really? Is that what we want young boys in high school today to 
think; that it is OK, don't worry, whatever you do in high school does 
not count--whatever you do in college doesn't count?
  I do not want my grandson to hear that message. I do not want my 
granddaughters to hear that message. I want

[[Page S6583]]

my country to be better than that. Dr. Ford is a real person. She is 
not alone.
  If any Senator in the U.S. Senate is listening, they will hear voices 
in their own States, from places they know, from their own relatives, 
from friends they have not ever known about, bravely come forward 
because Dr. Ford did. This Senate, with the action we are pursuing, 
could crush those voices forever.
  To my friends out there and to everyone who has a story, do not be 
silent. That is not how we win this for the future, but know we do 
believe you. The Senate has changed since then. I was proud of the 
Judiciary Committee members on our side, because unlike when I watched 
the Senate in 1991, there were women and men there who were listening, 
and they are today.
  We have to, in this Senate, think about the consequence of this vote 
to so many people who are listening today and asking: Do I say anything 
or do I let it happen?
  I urge my colleagues to remember the lesson of 1991, where too many 
people felt ``I can't speak out.'' We are changing. We are growing. We 
are speaking out. It is so imperative this Senate stand behind those 
women. We hear you. We believe you. We know that happened to you. You 
need to tell your story. You need to have the courage, and we will be 
behind you.
  I say to the Senators who are joining me today, both who have been 
involved in these cases, I am concerned this message could be the wrong 
one for young men and women who are coming behind us. We have to stand 
up for them.
  I yield to the Senator from Connecticut.
  Mr. BLUMENTHAL. Mr. President, I am honored to join these two 
eloquent colleagues who have each been champions for this cause as 
women speaking about the problem of sexual assault in our country--the 
epidemic of sexual assault that continues to be a scourge across our 
country. Most of my career in law enforcement, like my distinguished 
colleague from California, has been involved in making laws work for 
people and deterring exactly this kind of heinous lawbreaking. It is 
criminal. It is a crime, but it is one of the least reported crimes 
because of the public shaming and character assassination and mocking 
and ridiculing we have seen from men in power over just the last few 
days and weeks.
  I want to say, as a man speaking on the Senate floor--and greatly 
honored to do so--to other men in this country, those men in power who 
have mocked and ridiculed Dr. Blasey Ford cannot be our role model. 
Those men in power--they may be colleagues and they may be the 
President of the United States who have belittled and demeaned and 
dismissed Dr. Blasey Ford and Deborah Ramirez and survivors across the 
country--do not speak for us. I believe Dr. Blasey Ford. I believe Dr. 
Blasey Ford because she was credible and powerful as a witness before 
us in what she remembered and what she so candidly said she couldn't 
remember. I believe Deborah Ramirez. I believe all of you who have 
written my office or called us, as many of you have done in other 
States to my colleagues, who have recounted the horrors of your 
personal experience with sexual assault, who have come to me as I have 
been in airports or rallies or other public meetings and shared with me 
your horrific story. I believe you. America believes you.
  Let me say to Dr. Blasey Ford's sons, you should be proud of your 
mom. You should be proud of your mom because she is a profile in 
courage.
  To Mr. Ford, you should be proud of your wife.
  To all the men in America, we need to believe survivors of sexual 
assault. We need to protect and respect them, not just in word but in 
deed so they will come forward and tell us their stories so we can 
conquer scourge.
  We should be proud of the brave women who have brought us truth that 
cannot be denied no matter how much character assassination and public 
shaming they have endured. We know their truth. This issue of how 
America moves forward on sexual assault is bigger than this nomination. 
It will last beyond the vote tomorrow. It will be a defining question 
for each of us as men, as human beings.
  Judge Kavanaugh, in facing these allegations, has also revealed 
something profoundly significant about himself. When he came to the 
committee after Dr. Blasey Ford, he revealed his true character. He 
pulled back the mask on the judge and revealed the man. What we saw was 
someone filled with rage and spite, self-pitying and arrogant, deeply 
partisan, and threatening. We can disagree on Judge Kavanaugh's views 
on jurisprudential issues and policy and law. We can disagree on issues 
relating to his out-of-the-mainstream, far-right ideological 
position, but what cannot be denied is that picture of Judge Kavanaugh 
before our committee that indicated profoundly a lack of temperament 
and trustworthiness. That picture led former Justice John Paul Stevens 
to revoke his endorsement and to say his performance was disqualifying.

  What we saw--as they say, a picture is worth a thousand words--was a 
man who refused to answer questions; he snapped at my colleagues; he 
spouted partisan conspiracy theories. That is the real Brett 
Kavanaugh--the Brett Kavanaugh who characterized Dr. Ford's serious and 
credible allegations as nothing more than ``a calculated and 
orchestrated political hit.'' He, in effect, depicted her as a puppet 
or a pawn of Senators or political figures, not people who came forward 
voluntarily in their own right and on their own initiative, as truly 
they did.
  He was the Brett Kavanaugh who alleged that it was all ``revenge on 
behalf of the Clintons.'' He is the Brett Kavanaugh who, as the 
Portland Press Herald characterized it, ``ripped off the nonpartisan 
mask'' and never looked back.
  He is the Brett Kavanaugh who threatened us, saying, ``What goes 
around, comes around.''
  In Brett Kavanaugh's own words, a judge must be someone who is 
``even-handed, unbiased, impartial, courteous yet firm, and dedicated 
to a process, not a result.'' Those are his own words. That is not 
Brett Kavanaugh the man. It will not be Brett Kavanaugh the Justice if 
he is confirmed.
  Brett Kavanaugh revealed himself to be a partisan--an angry and 
bitter partisan--not an impartial jurist, and he did so in prepared 
remarks, planned and premeditated, well calculated, written word for 
word, and delivered word for word as he angrily turned the pages, and 
that is the message that, for me, resonates because I have argued cases 
in the Supreme Court. I have spent a career standing before judges. 
Some of their rulings I liked; some of them I disliked. Some of their 
conclusions I thought were maybe incorrect. But I knew that those men 
and women wanted to be impartial. When they put those robes on, as 
Brett Kavanaugh has done, they left party and partisan interests at the 
door.
  Now, when I go to the U.S. Supreme Court, if Brett Kavanaugh is 
confirmed, there can be no trust or confidence that he will be that 
impartial jurist. It is and will be a stain, a cloud, on the U.S. 
Supreme Court. All the Supreme Court has in the way of power is the 
trust and credibility and confidence of the American people, which will 
be diminished forever.
  So let me pose a question to my colleague from California because she 
has so well described the voir dire process. It is jury selection, 
where we make an effort to pick jurors who are impartial and 
nonpartisan.
  I say to Senator Harris, if Brett Kavanaugh came to a courtroom where 
the Senator was trying a case as an attorney general, and he were in 
the jury pool to be picked for a jury, would the Senator pick him as a 
juror? After that appearance before our committee, would the Senator 
allow him to sit on a case where the Senator was litigating?
  Ms. HARRIS. I say to Senator Blumenthal, my response would be no. My 
response is no, and I will tell you why--because one of the most 
important qualities of a juror in our system of justice is that they 
have the ability to receive information without bias, without any 
interest in the outcome, and Judge Kavanaugh has made it very clear to 
the American public that he is biased, that he is perceiving 
information and perceives it through the lens of a partisan and through 
the lens of the person he has been his entire career, which is a 
partisan operative.
  There were moments, perhaps during his initial testimony, where he 
may have distracted us from that part of his

[[Page S6584]]

history, where he talked in a calm voice about certain things. He 
certainly knows case law and talked about it. But when the issues got 
hot, when it became about fundamental issues, the veneer was stripped 
away, and Brett Kavanaugh showed us who he really is.
  On the point of temperament, I think it is important for a number of 
reasons that the American people really review his testimony during 
those hearings these last days of this process because what he showed 
us also are two things in the way that he responded to our colleagues 
and approached the issue.
  One, he showed us that he lacks credibility, and I will tell you why 
I say that. When I was trying cases, I recall an instruction the jury 
would receive at the close of a case; the judge would give the jury 
instructions about how they could evaluate--it was a tool to help them 
evaluate the credibility of a witness, and one of the instructions was 
that it is relevant and significant for you to analyze the demeanor of 
this witness toward the proceedings. On this point, let's recall Dr. 
Ford's demeanor and Judge Kavanaugh's demeanor.
  Dr. Ford went out of her way to be helpful and truthful. She 
corrected herself when she thought there was more to offer. She 
yielded: Would the committee like a break? If so, I will take one. If 
not, I can keep going.

  By contrast, Judge Kavanaugh was arrogant, he was aggressive, he was 
accusatory, and, clearly, he was not in control of himself. But I have 
to believe he was in control of his words because, as the Senator has 
pointed out, he told us he wrote his speech the night before. He said: 
I didn't show my staff. I just wrote these.
  Well, you know, we often advise people when you are feeling hot about 
something, write it all out and then sleep on it. Then look at those 
words the next day, and see if you really want to stand by them.
  This is a judge who is meticulous, he says, in everything he does. I 
believe that he wrote those words the night before. I am sure he slept 
on it. I am sure he looked at those notes again, and he decided that is 
what he was going with because it wasn't just about the heat of that 
moment. These are the things he really believes. That is why he said 
it, so let's believe him at his word. He is a partisan.
  For that reason, I answer the Senator's question by saying, no, I 
would not select him to be on a jury.
  Mr. BLUMENTHAL. I think this issue of temperament--and I am going to 
pose a question to my colleague from Washington--is fundamental to our 
system of justice in this country. Courtrooms are sometimes really 
emotional places, and sometimes they are angry places. The function of 
the judge is to remove the emotion and the anger, to be impartial and 
balanced and even keeled.
  So for a judge on the DC Circuit Court of Appeals to engage in the 
kind of angry outburst--it was not spontaneous; it was not the result 
of some accusation in the moment. It was calculated. It was 
premeditated. It was written the day before. It was inexcusable and 
unacceptable.
  I will ask my colleague from the State of Washington, since she is 
not a lawyer, perhaps to her credit: If the Senator were appearing in a 
courtroom with Judge Kavanaugh, wouldn't the Senator ask that he step 
away from the case, that he recuse himself in light of what he has said 
about all Democrats, about vast classes of people--this anger that he 
has expressed?
  Mrs. MURRAY. I thank the Senator from Connecticut. No, I am not a 
lawyer. I was a preschool teacher, and one of the things I do know is 
that I wanted my students to know it is not OK to bully. You have to 
take a pause and do what is right.
  But let me tell you, what I would want for every one of the kids I 
have ever taught in preschool is to know that if anything they deeply 
care about--an issue or they themselves--ever appears in a court, then 
they should feel, in the United States of America, that they would be 
given a fair shot, and win or lose, the judge presiding over them would 
leave them with that feeling at the end of the day. That, to me, is why 
temperament is so important.
  If Americans lose the sense that no matter who they are or what their 
issue is or where they come from or how much money they make in our 
court of law, they stand a chance to be heard, even if they lose or if 
they win--that is why temperament is so important to me as a nonlawyer 
and someone who cares deeply about this country.
  Mr. BLUMENTHAL. I will yield back to my colleague from California, 
but let me just close my part of this colloquy by saying that we saw 
the real Brett Kavanaugh before us on that day at that moment, and I 
think my colleagues, if they review that picture, a picture is worth a 
thousand words. If they apply common sense--we should not leave common 
sense at the door. If they put themselves in the shoes of someone 
appearing, seeking justice, they will vote against Brett Kavanaugh and 
the disrespect that he showed that brave survivor, Dr. Blasey Ford.
  I yield back to my colleague from California.
  Ms. HARRIS. I thank my colleagues from Washington and from 
Connecticut. I agree, we can find a better nominee, and I yield to the 
Senator from the great State of Virginia.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. KAINE. Mr. President, I also rise to speak on the nomination of 
Judge Brett Kavanaugh to the Supreme Court.
  When he was nominated to fill the vacancy occasioned by the 
retirement of Justice Kennedy, I immediately began to read all I could 
about his record. I reviewed his judicial opinions, law review 
articles, speeches, and I reviewed, such as they were made available, 
documents produced from his time working with the Bush administration 
and his work with the special prosecutor, Ken Starr.
  Following the review, I met with him to ask him serious questions 
about his record. I then watched his Judiciary Committee hearing with 
interest. After that hearing, based on all I had seen and read, I 
announced my opposition to his nomination for two reasons.
  First, the Nation needs a Justice with the backbone to stand up as an 
independent check against both the President and Congress. That is why 
our Nation gives judges life tenure, so they can render independent 
rulings without fear of losing their jobs.
  In a whole series of writings, speeches, and rulings over the course 
of many years, both as a lawyer and as a judge, Judge Kavanaugh has 
embraced an unusual deference to Executive power. I think this is one 
of the reasons the President nominated him, and I don't have confidence 
that Judge Kavanaugh will hold the President accountable to the law.
  Second, Judge Kavanaugh's writings as a Bush administration lawyer--
at least those that the majority has allowed us to see--demonstrate his 
personal view that settled law is settled only until five Justices 
decide to do something different.
  This is true, as a matter of realpolitik, but I am left with serious 
questions about what other areas of settled law might be unsettled, 
should he ascend to the Court.
  I can understand how my colleagues might reach different conclusions 
on the two issues that led me to oppose this nominee, but since I 
announced my position, two additional issues of great importance have 
arisen.
  The first is how the Senate, as an institution charged with 
leadership, will respond to the real and pervasive problem of sexual 
assault. The second issue is how blatantly partisan we would want the 
Supreme Court to be.
  Christine Blasey Ford has come forward alleging that Judge Kavanaugh 
sexually assaulted her in high school. Deborah Ramirez has come forward 
to allege that he sexually humiliated her during a party during his 
time at Yale.

  The two allegations by two people who do not know each other, about 
instances that happened in different times at different places, have 
striking similarities. Both Ford and Ramirez allege that Kavanaugh was 
under the influence of alcohol and, in the presence of other people, 
assaulted or sexually humiliated them while others stood by laughing--
laughing. In both allegations, the sexual abuse of a woman was treated 
as some form of entertainment for other persons.
  People who have suffered from sexual assault or harassment are 
watching to see how the Senate responds to these serious charges. And 
what do they see?

[[Page S6585]]

A hearing where Dr. Ford described her experience calmly, credibly, and 
candidly, while Judge Kavanaugh attacked her claims, as well as those 
of Ms. Ramirez, as nothing more than a partisan political conspiracy; a 
narrowly limited, 5-day investigation by the FBI, which, under orders 
from the White House, contacted a handful of witnesses, while dozens of 
witnesses proffered by Dr. Ford and Ms. Ramirez were ignored; and a 
single copy of the FBI investigation notes made available for Senators 
to read, provided that its meager contents not be shared with the press 
or public.
  Even that minimal investigation raises serious concerns about these 
claims and Judge Kavanaugh's general truthfulness, but by moving 
forward to a vote anyway, the unmistakable message to survivors is that 
the Senate does not take allegations of sexual assault seriously.
  More than 150 survivors of sexual abuse from Virginia have reached 
out to me to share their personal stories and ask that the Senate show 
we care about survivors. Some of these people are women I have known 
for decades who had never shared their stories with me.
  A woman from Alexandria wrote:

       As a citizen, veteran, assistant professor, mother, 
     grandmother, wife and sexual assault victim at age 17 in 
     1968, I want to thank Dr. Blasey Ford for her testimony. I 
     have never told anyone of the sexual attack, and I am 68 
     years old.

  A woman from Sterling wrote:

       I want my future daughters to grow up in a country where 
     sexual assault and abuse is taken seriously by every official 
     and legal professional in the United States.

  A man from Chesapeake wrote:

       As a male sexual assault victim, I understand how difficult 
     it is to come forward. I strongly and respectfully urge you 
     to attempt to empathize with those of us who have been 
     abused.

  A survivor from Radford wrote expressing dissatisfaction with the 
minimal investigation, saying, ``It makes me feel like if my attacker 
were nominated for the Supreme Court, that I wouldn't be taken 
seriously either.''
  A woman from Williamsburg wrote:

       Dr. Ford has agreed to full investigations into her 
     experiences, but our leaders are failing her and every 
     American citizen. I watch this unfold with anticipation, 
     hoping that my representatives will listen to us.

  An immigrant from Henrico:

       When my family immigrated, an American couple who had 
     helped sponsor our family became my temporary legal 
     guardians. My sponsor mother was wonderful but did not know 
     that her husband repeatedly molested and raped me. It started 
     at age five until I returned to my family at age nine--my 
     older daughter's current age.

  What are these survivors asking? First, that a real investigation 
into the charges be conducted; that the dozens of witnesses proffered 
by Ms. Ramirez and Dr. Ford not be ignored; and finally, that the 
Senate not confirm to the Supreme Court a person with a question mark 
by his name.
  To confirm Judge Kavanaugh under these circumstances would send a 
powerful message that the Senate--and now possibly the Supreme Court--
is a hostile environment for survivors of sexual assault.
  The second issue raised by these allegations is how partisan we want 
the Court to be. A person accused of any offense--especially sexual 
assault--is entitled to defend themselves. It is natural to be 
emotional and even angry of such an offense if one felt falsely 
accused. But Judge Kavanaugh went far beyond that. He claimed that the 
allegations of Dr. Ford and Ms. Ramirez were part of a political 
conspiracy connected to the Democratic Party, outside activists, and 
the Clintons.
  The performance was insulting, and the conspiracy charge was a 
complete fabrication. There is no evidence to suggest that politics 
created Dr. Ford's account of being attacked at a party, her history of 
seeking counseling years before the nomination, the notes from her 
therapist, her willingness to take a polygraph, the results of that 
polygraph, the extensive corroboration of her story of alcohol-fueled 
house parties in the DC suburbs in 1982, or the admitted exploits of 
the alleged co-assailant, Mark Judge.
  There is no evidence to suggest that politics created Ms. Ramirez's 
account of being sexually humiliated at Yale. Indeed, if the FBI were 
willing to interview witnesses who are now speaking publicly, there is 
ample evidence corroborating the account.
  So when a nominee who in the past advocated slash-and-burn partisan 
tactics as part of the Starr investigation reveals that he still 
harbors partisan resentment and attempts to shrug off serious claims of 
sexual assault as a political conspiracy connected to ``outside 
leftwing . . . groups'' or the Clintons, he reveals a temperament that 
would be very dangerous if added to the Supreme Court. That is why 
retired Justice John Paul Stevens has come out urging a ``no'' vote on 
this nomination.
  The good news is that there is a solution to this. There is a 
solution. We need not settle for a nominee burdened by questions 
regarding sexual assault allegations or excessive partisanship. There 
are numerous jurists who could meet the standards of a Republican 
President and a Republican Senate majority who do not have these 
issues. Why approve a nominee whose approval would send a hostile 
message to sexual assault survivors? Why approve a nominee whose 
nomination and approval would send a message of concern for those who 
don't share his political views? We can find a nominee who will not 
cause sexual assault survivors, litigants, or lawyers to fear how they 
will be treated by the Nation's highest Court.
  For the good of the Senate and for the good of the Court, I urge my 
colleagues to vote no on the Kavanaugh nomination, and I ask the 
President to send up a nominee who will not hurt the reputation of 
either institution.
  With that, I yield the floor.
  The PRESIDING OFFICER (Mr. Young). The Senator from Maine.
  (Disturbance in the Visitors' Galleries.)
  The PRESIDING OFFICER. As a reminder to our guests in the Galleries, 
expressions of approval or disapproval are not permitted in the Senate 
Gallery.
  The Senator from Maine.
  Ms. COLLINS. Thank you, Mr. President.
  Mr. President, the five previous times that I have come to the floor 
to explain my vote on the nomination of a Justice to the U.S. Supreme 
Court, I have begun my floor remarks explaining my decision with a 
recognition of the solemn nature and the importance of the occasion. 
But today we have come to the conclusion of a confirmation process that 
has become so dysfunctional, it looks more like a caricature of a 
gutter-level political campaign than a solemn occasion.
  The President nominated Brett Kavanaugh on July 9. Within moments of 
that announcement, special interest groups raced to be the first to 
oppose him, including one organization that didn't even bother to fill 
in the judge's name on its prewritten press release--they simply wrote 
that they opposed ``Donald Trump's nomination of XX to the Supreme 
Court of the United States.'' A number of Senators joined the race to 
announce their opposition, but they were beaten to the punch by one of 
our colleagues who actually announced opposition before the nominee's 
identity was even known.
  Since that time, we have seen special interest groups whip their 
followers into a frenzy by spreading misrepresentations and outright 
falsehoods about Judge Kavanaugh's judicial record. Over-the-top 
rhetoric and distortions of his record and testimony at his first 
hearing produced short-lived headlines which, although debunked hours 
later, continued to live on and be spread through social media. 
Interest groups have also spent an unprecedented amount of dark money 
opposing this nomination.
  Our Supreme Court confirmation process has been in steady decline for 
more than 30 years. One can only hope that the Kavanaugh nomination is 
where the process has finally hit rock bottom.
  Against this backdrop, it is up to each individual Senator to decide 
what the Constitution's advice-and-consent duty means. Informed by 
Alexander Hamilton's Federalist 76, I have interpreted this to mean 
that the President has broad discretion to consider a nominee's 
philosophy, whereas my duty as a Senator is to focus on the nominee's 
qualifications as long as that nominee's philosophy is within the 
mainstream of judicial thought.
  I have always opposed litmus tests for judicial nominees with respect 
to

[[Page S6586]]

their personal views or politics, but I fully expect them to be able to 
put aside any and all personal preferences in deciding the cases that 
come before them. I have never considered the President's identity or 
party when evaluating Supreme Court nominations. As a result, I voted 
in favor of Justices Roberts and Alito, who were nominated by President 
Bush; Justices Sotomayor and Kagan, who were nominated by President 
Obama; and Justice Gorsuch, who was nominated by President Trump.
  I began my evaluation of Judge Kavanaugh's nomination by reviewing 
his 12-year record on the DC Circuit Court of Appeals, including his 
more than 300 opinions and his many speeches and law review articles. 
Nineteen attorneys, including lawyers from the nonpartisan 
Congressional Research Service, briefed me many times each week and 
assisted me in evaluating the judge's extensive record. I met with 
Judge Kavanaugh for more than 2 hours in my office. I listened 
carefully to the testimony at the committee hearings. I spoke with 
people who knew him personally, such as Condoleezza Rice and many 
others. I talked with Judge Kavanaugh a second time by phone for 
another hour to ask him very specific additional questions.
  I also have met with thousands of my constituents, both advocates and 
many opponents, regarding Judge Kavanaugh. One concern that I 
frequently heard was that the judge would be likely to eliminate the 
Affordable Care Act's vital protections for people with preexisting 
conditions. I disagree with this contention. In a dissent in Seven-Sky 
v. Holder, Judge Kavanaugh rejected a challenge to the ACA on narrow 
procedural grounds, preserving the law in full. Many experts have said 
that his dissent informed Justice Roberts' opinion upholding the ACA at 
the Supreme Court.
  Furthermore, Judge Kavanaugh's approach toward the doctrine of 
severability is narrow. When a part of a statute is challenged on 
constitutional grounds, he has argued for severing the invalid clause 
as surgically as possible while allowing the overall law to remain 
intact.
  This was his approach in his dissent in a case that involved a 
challenge to the structure of the Consumer Financial Protection Bureau. 
In his dissent, Judge Kavanaugh argued for ``severing any problematic 
portions while leaving the remainder intact.'' Given the current 
challenges to the ACA, proponents, including myself, of protections for 
people with preexisting conditions should want a Justice who would take 
just this kind of approach.
  Another assertion I have heard often is that Judge Kavanaugh cannot 
be trusted if a case involving alleged wrongdoing by the President were 
to come before the Court. The basis for this argument seems to be 
twofold.
  First, Judge Kavanaugh has written he believes Congress should enact 
legislation to protect Presidents from criminal prosecution or civil 
liability while in office. I believe opponents miss the mark on this 
issue. The fact that Judge Kavanaugh offered this legislative proposal 
suggests he believes the President does not have such protection 
currently.
  Second, there are some who argue that given the current special 
counsel investigation, President Trump should not even be allowed to 
nominate a Justice. That argument ignores our recent history. President 
Clinton, in 1993, nominated Justice Ginsburg after the Whitewater 
investigation was already underway, and she was confirmed 96 to 3.
  The next year, just 3 months after Independent Counsel Robert Fiske 
was named to lead the Watergate investigation, President Clinton 
nominated Justice Breyer. He was confirmed 87 to 9.
  Supreme Court Justices have not hesitated to rule against the 
Presidents who have nominated them. Perhaps most notably in United 
States v. Nixon, the three Nixon appointees who heard the case joined 
the unanimous opinion against him.
  Judge Kavanaugh has been unequivocal in his belief that no President 
is above the law. He has stated that Marbury v. Madison, Youngstown 
Steel v. Sawyer, and United States v. Nixon are three of the four 
greatest Supreme Court cases in history. What do they have in common? 
Each of them is a case where Congress served as a check on Presidential 
power. I would note, the fourth case Judge Kavanaugh has pointed to as 
the greatest in history was Brown v. Board of Education.
  One Kavanaugh decision illustrates the point about the check on 
Presidential power directly. He wrote the opinion in Hamdan v. United 
States, a case that challenged the Bush administration's military 
commission prosecution of an associate of Osama Bin Laden. This 
conviction was very important to the Bush administration, but Judge 
Kavanaugh, who had been appointed to the DC Circuit by President Bush 
and had worked in President Bush's White House, ruled that the 
conviction was unlawful. As he explained during the hearing: ``We don't 
make decisions based on who people are, or their policy preferences, or 
the moment. We base decisions on the law. . . . ''
  Others I have met with have expressed concerns that Justice Kennedy's 
retirement threatens the right of same-sex couples to marry. Yet Judge 
Kavanaugh described the Obergefell decision, which legalized same-
gender marriages, as an important landmark precedent. He also cited 
Justice Kennedy's recent Masterpiece Cakeshop opinion for the Court's 
majority stating that ``the days of treating gay and lesbian Americans 
or gay and lesbian couples as second class citizens who are inferior in 
dignity and worth are over in the Supreme Court.''
  Others have suggested that the judge holds extreme views on birth 
control. In one case, Judge Kavanaugh incurred the disfavor of both 
sides of the political spectrum for seeking to ensure the availability 
of contraceptive services for women while minimizing the involvement of 
employers with religious objections. Although his critics frequently 
overlook this point, Judge Kavanaugh's dissent rejected arguments that 
the government did not have a compelling interest in facilitating 
access to contraception. In fact, he wrote that the Supreme Court 
precedent ``strongly suggested'' that there was a ``compelling 
interest'' in facilitating access to birth control.
  There has also been considerable focus on the future of abortion 
rights based on the concern that Judge Kavanaugh would seek to overturn 
Roe v. Wade. Protecting this right is important to me. To my knowledge, 
Judge Kavanaugh is the first Supreme Court nominee to express the view 
that precedent is not merely a practice and tradition but rooted in 
article III of our Constitution itself.
  He believes precedent ``is not just a judicial policy . . . it is 
constitutionally dictated to pay attention and pay heed to rules of 
precedent.'' In other words, precedent isn't a goal or an aspiration; 
it is a constitutional tenet that has to be followed except in the most 
extraordinary circumstances.
  The judge further explained that precedent provides stability, 
predictability, reliance, and fairness. There are, of course, rare and 
extraordinary times where the Supreme Court would rightly overturn a 
precedent. The most famous example was when the Supreme Court, in Brown 
v. Board of Education, overruled Plessy v. Ferguson, correcting a 
``grievously wrong'' decision, to use the judge's term, allowing racial 
inequality.
  But someone who believes the importance of precedent has been rooted 
in the Constitution would follow long-established precedent except in 
those rare circumstances in which a decision is ``grievously wrong'' or 
``deeply inconsistent with the law.'' Those are Judge Kavanaugh's 
phrases.
  As the judge asserted to me, a long-established precedent is not 
something to be trimmed, narrowed, discarded, or overlooked. Its roots 
in the Constitution give the concept of stare decisis greater weight 
such that the precedent can't be trimmed or narrowed simply because a 
judge might want to on a whim. In short, his views on honoring 
precedent would preclude attempts to do by stealth that which one has 
committed not to do overtly.
  Noting that Roe v. Wade was decided 45 years ago and reaffirmed 19 
years later in Planned Parenthood v. Casey, I asked Judge Kavanaugh 
whether the passage of time is relevant to following precedent. He said 
decisions become part of our legal framework with the passage of time 
and that honoring precedent is essential to maintaining public 
confidence.
  Our discussion then turned to the right of privacy, on which the 
Supreme

[[Page S6587]]

Court relied in Griswold v. Connecticut, a case that struck down a law 
banning the use and sale of contraceptives. Griswold established the 
legal foundation that led to Roe 8 years later. In describing Griswold 
as ``settled law,'' Judge Kavanaugh observed that it was the correct 
application of two famous cases from the 1920s, Meyer and Pierce, that 
are not seriously challenged by anyone today.
  Finally, in his testimony, he noted repeatedly that Roe had been 
upheld by Planned Parenthood v. Casey, describing it as precedent on 
precedent. When I asked him whether it would be sufficient to overturn 
a long-established precedent if five current Justices believed it was 
wrongly decided, he emphatically said no.
  Opponents frequently cite then-candidate Donald Trump's campaign 
pledge to nominate only judges who would overturn Roe. The Republican 
platform for all Presidential campaigns has included this pledge since 
at least 1980. During this time, Republican Presidents have appointed 
Justices O'Connor, Souter, and Kennedy to the Supreme Court. These are 
the very three Republican President-appointed Justices who authored the 
Casey decision which reaffirmed Roe.
  Furthermore, pro-choice groups vigorously opposed each of these 
Justices' nominations. Incredibly, they even circulated buttons with 
the slogan: ``Stop Souter or Women Will Die!'' Just 2 years later, 
Justice Souter coauthored that Casey opinion, reaffirming a woman's 
right to choose. Suffice it to say, prominent advocacy organizations 
have been wrong.
  These same interest groups have speculated that Judge Kavanaugh was 
selected to do the bidding of conservative ideologues, despite his 
record of judicial independence. I asked the judge point-blank whether 
he had made any commitments or pledges to anyone at the White House, to 
the Federalist Society, or to any outside group on how he would decide 
cases. He unequivocally assured me he had not.
  Judge Kavanaugh has received rave reviews for his 12-year track 
record as a judge, including for his judicial temperament. The American 
Bar Association gave him its highest possible rating. Its Standing 
Committee on the Federal Judiciary conducted an extraordinarily 
thorough assessment, soliciting input from almost 500 people, including 
his judicial colleagues. The ABA concluded that ``his integrity, 
judicial temperament, and professional confidence met the highest 
standard.''
  Lisa Blatt, who has argued more cases before the Supreme Court than 
any other woman in history, testified:

       By any objective measure, Judge Kavanaugh is clearly 
     qualified to serve on the Supreme Court.
       His opinions are invariably thoughtful and fair.

  Ms. Blatt, who clerked for and is an ardent admirer of Justice 
Ginsburg, and who is, in her own words, ``an unapologetic defender of a 
woman's right to choose,'' said Judge Kavanaugh ``fit[s] within the 
mainstream of legal thought.'' She also observed ``Judge Kavanaugh is 
remarkably committed to promoting women in the legal profession.''

  That Judge Kavanaugh is more of a centrist than some of his critics 
maintain is reflected in the fact that he and Chief Judge Merrick 
Garland voted the same way in 93 percent of the cases they heard 
together. Indeed, Chief Judge Garland joined in more than 96 percent of 
the majority opinions authored by Judge Kavanaugh, dissenting only 
once.
  Despite all of this, after weeks of reviewing Judge Kavanaugh's 
record and in listening to 32 hours of his testimony, the Senate's 
advice and consent role was thrown into a tailspin following the 
allegation of sexual assault by Professor Christine Blasey Ford. The 
confirmation process now involves evaluating whether Judge Kavanaugh 
committed sexual assault and lied about it to the Judiciary Committee.
  Some argue that because this is a lifetime appointment to our highest 
Court, the public interest requires that doubts be resolved against the 
nominee. Others see the public interest as embodied in our long-
established tradition of affording to those accused of misconduct a 
presumption of innocence. In cases in which the facts are unclear, they 
would argue the question should be resolved in favor of the nominee.
  I understand both viewpoints. This debate is complicated further by 
the fact that the Senate confirmation process is not a trial. But 
certain fundamental legal principles about due process, the presumption 
of innocence, and fairness do bear on my thinking, and I cannot abandon 
them.
  In evaluating any given claim of misconduct, we will be ill-served in 
the long run if we abandon the presumption of innocence and fairness, 
tempting though it may be. We must always remember it is when passions 
are most inflamed that fairness is most in jeopardy.
  The presumption of innocence is relevant to the advice and consent 
function when an accusation departs from a nominee's otherwise 
exemplary record. I worry that departing from this presumption could 
lead to a lack of public faith in the judiciary and would be hugely 
damaging to the confirmation process moving forward.
  Some of the allegations levied against Judge Kavanaugh illustrate why 
the presumption of innocence is so important. I am thinking, in 
particular, not of the allegations raised by Professor Ford but of the 
allegation that when he was a teenager, Judge Kavanaugh drugged 
multiple girls and used their weakened states to facilitate gang rape. 
This outlandish allegation was put forth without any credible 
supporting evidence and simply parroted the public statements of 
others. That such an allegation can find its way into the Supreme Court 
confirmation process is a stark reminder of why the presumption of 
innocence is so ingrained in our American consciousness.
  Mr. President, I listened carefully to Christine Blasey Ford's 
testimony before the Judiciary Committee. I found her testimony to be 
sincere, painful, and compelling. I believe she is a survivor of a 
sexual assault and that this trauma has upended her life. Nevertheless, 
the four witnesses she named could not corroborate any of the events of 
the evening gathering where she said the assault occurred. None of the 
individuals Professor Ford said were at the party has any recollection 
at all of that night.
  Judge Kavanaugh forcefully denied the allegations under penalty of 
perjury. Mark Judge denied, under penalty of felony, that he had 
witnessed an assault. PJ Smyth, another person allegedly at the party, 
denied, under penalty of felony, that he was there. Professor Ford's 
lifelong friend, Leland Keyser, indicated that under penalty of felony, 
she does not remember that party. Ms. Keyser went further. She 
indicated that not only does she not remember a night like that but 
also that she does not even know Brett Kavanaugh.
  In addition to the lack of corroborating evidence, we also learned 
some facts that raised more questions. For instance, since these 
allegations have become public, Professor Ford testified that not a 
single person has contacted her to say: ``I was at the party that 
night.''
  Furthermore, the professor testified that although she does not 
remember how she got home that evening, she knew, because of the 
distance, she would have needed a ride. Yet not a single person has 
come forward to say that he or she was the one who drove her home or 
was in the car with her that night. Professor Ford also indicated that 
even though she left that small gathering of six or so people abruptly 
and without saying goodbye and was distraught, none of them called her 
the next day--or ever--to ask why she left or was she OK, not even her 
closest friend, Ms. Keyser.
  The Constitution does not provide guidance on how we are supposed to 
evaluate these competing claims. It leaves that decision up to each 
Senator. This is not a criminal trial, and I do not believe claims such 
as these need to be proven beyond a reasonable doubt. Nevertheless, 
fairness would dictate that the claims should at least meet a threshold 
of ``more likely than not'' as our standard.
  The facts presented do not mean Professor Ford was not sexually 
assaulted that night or at some other time, but they do lead me to 
conclude that the allegations fail to meet the ``more likely than not'' 
standard. Therefore, I do not believe these charges can fairly prevent 
Judge Kavanaugh from serving on the Court.

[[Page S6588]]

  Let me emphasize that my approach to this question should not be 
misconstrued as suggesting that unwanted sexual contact of any nature 
is not a serious problem in this country. To the contrary, if any good 
at all has come from this ugly confirmation process, it has been to 
create an awareness that we have underestimated the pervasiveness of 
this terrible problem.
  I have been alarmed and disturbed, however, by some who have 
suggested that unless Judge Kavanaugh's nomination is rejected, the 
Senate is somehow condoning sexual assault. Nothing could be further 
from the truth.

  Every person--man or woman--who makes a charge of sexual assault 
deserves to be heard and treated with respect. The #MeToo movement is 
real; it matters; it is needed; and it is long overdue. We know rape 
and sexual assault are less likely to be reported to the police than 
other forms of assault. On average, an estimated 211,000 rapes and 
sexual assaults go unreported every year. We must listen to survivors, 
and every day we must seek to stop the criminal behavior that has hurt 
so many. We owe this to ourselves, our children, and generations to 
come.
  Since the hearing, I have listened to many survivors of sexual 
assault. Many were total strangers who told me their heart-wrenching 
stories for the first times in their lives. Some were friends whom I 
have known for decades. Yet, with the exception of one woman who had 
confided in me years ago, I had no idea they had been the victims of 
sexual attacks. I am grateful for their courage and their willingness 
to come forward, and I hope that in heightening public awareness, they 
have also lightened the burden they have been quietly bearing for so 
many years. To them, I pledge to do all I can to ensure that their 
daughters and granddaughters never share their experiences.
  Over the past few weeks, I have been emphatic that the Senate has an 
obligation to investigate and evaluate the serious allegations of 
sexual assault. I called for and supported the additional hearing to 
hear from both Professor Ford and Judge Kavanaugh. I also pushed for 
and supported the FBI's supplemental background investigation. This was 
the right thing to do.
  Christine Ford never sought the spotlight. She indicated she was 
terrified to appear before the Senate Judiciary Committee, and she has 
shunned attention since then. She seemed completely unaware of Chairman 
Grassley's offer to allow her to testify confidentially in California. 
In watching her, I could not help but feel that some people who wanted 
to engineer the defeat of this nomination cared little, if at all, for 
her well-being.
  Professor Ford testified that a very limited number of people had 
access to her letter. Yet that letter found its way into the public 
domain. She testified she never gave permission for that very private 
letter to be released. Yet here we are. We are in the middle of a fight 
she never sought, arguing about claims she wanted to raise 
confidentially.
  One theory I have heard espoused repeatedly is that our colleague 
Senator Feinstein leaked Professor Ford's letter at the eleventh hour 
to derail this process. I want to state this very clearly: I know 
Senator Dianne Feinstein extremely well, and I believe she would never 
do that. I knew that to be the case before she even stated it at the 
hearing. She is a person of integrity, and I stand by her.
  I have also heard some argue that the chairman of the committee 
somehow treated Professor Ford unfairly. Nothing could be further from 
the truth. Chairman Grassley, along with his excellent staff, treated 
Professor Ford with compassion and respect throughout the entire 
process. That is the way the Senator from Iowa has conducted himself 
throughout a lifetime dedicated to public service.

  The fact remains that someone leaked this letter against Professor 
Ford's express wishes. I suspect, regrettably, that we will never know 
for certain who did it.
  To that leaker, who I hope is listening now, let me say that what you 
did was unconscionable. You have taken a survivor who was not only 
entitled to your respect but who also trusted you to protect her, and 
you have sacrificed her well-being in a misguided attempt to win 
whatever political crusade you think you are fighting. My only hope is 
that your callous act has turned this process into such a dysfunctional 
circus that it will cause the Senate--and, indeed, all Americans--to 
reconsider how we evaluate Supreme Court nominees. If that happens, 
then the appalling lack of compassion you afforded Professor Ford will 
at least have some unintended positive consequences.
  The politically charged atmosphere surrounding this nomination had 
reached a fever pitch even before these allegations were known, and it 
was challenging even then to separate fact from fiction.
  We live in a time of such great disunity, as the bitter fight over 
this nomination both in the Senate and among the public clearly 
demonstrates. It is not merely a case of differing groups having 
different opinions; it is a case of people bearing extreme ill will 
toward those who disagree with them.
  In our intense focus on our differences, we have forgotten the common 
values that bind us together as Americans. With some of our best minds 
seeking to develop ever more sophisticated algorithms designed to link 
us to websites that only reinforce and cater to our views, we can only 
expect our differences to intensify.
  This would have alarmed the drafters of our Constitution, who were 
acutely aware that different values and interests could prevent 
Americans from becoming and remaining a single people. Indeed, of the 
six objectives they invoked in the preamble to the Constitution, the 
one that they put first was the formation of ``a more perfect Union.'' 
Their vision of ``a more perfect Union'' does not exist today. If 
anything, we appear to be moving far away from it. It is particularly 
worrisome that the Supreme Court--the institution that most Americans 
see as the principal guardian of our shared constitutional heritage--is 
viewed as part of the problem through a political lens.
  Mr. President, we have heard a lot of charges and countercharges 
about Judge Kavanaugh, but, as those who have known him best have 
attested, he has been an exemplary public servant, judge, teacher, 
coach, husband, and father.
  Despite the turbulent and bitter fights surrounding his nomination, 
my fervent hope is that Brett Kavanaugh will work to lessen the 
divisions in the Supreme Court so that we have far fewer 5-4 decisions 
and that public confidence in our judiciary and our highest Court is 
restored.
  Mr. President, I will vote to confirm Judge Kavanaugh.
  Thank you.
  (Applause, Senators rising.)
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. Mr. President, it is sometimes said that today's 
Senate does not measure up to the Senate's previous years because we 
have no eloquent Senators who make compelling speeches. I think Senator 
Collins has just disproved that today. Whether or not one agrees with 
her, she was eloquent. Her speech was compelling, and she has presented 
her case in the tradition of another Senator from Maine who was serving 
here when I first came many years ago as a young Senate aide, Senator 
Margaret Chase Smith. It is that tradition of independence and 
diligence which is so valuable and so important, especially in times of 
stress like this.
  I had thought of following Senator Collins with some remarks of my 
own about what I found when I read the background checks today. I went 
to the section where we read classified documents. I saw that over 25 
years, 150 people had been interviewed about Judge Kavanaugh. They had 
specifically been asked a question about whether they saw any evidence 
of alcohol abuse, and every single one said no and that there was no 
evidence of sexual impropriety.
  I want to thank Senator Collins for her insistence on an extra week 
so that we could have a seventh FBI investigation. I took the time to 
review that as well. I saw that no matter how credible Dr. Ford 
seemed--and she did seem credible to me--no one except Dr. Ford 
remembers that alleged incident. And the other four, as Senator Collins 
said, who Dr. Ford said were there either don't remember it or said 
that it didn't happen.
  I think the takeaway from what the Senator from Maine has said is 
that we

[[Page S6589]]

have reached what she said she hopes is the rock bottom in the Senate 
confirmation process. This is not the way things should be. Whether you 
are a Democrat or a Republican, we know that the most awful 
allegations--sexual assault certainly is as awful as any--deserve a 
modicum--there is a standard of fairness. She used the words ``more 
likely than not'' in her case. But in the U.S. Senate, we should be 
able to deal with such issues in a much better way than we have dealt 
with this.
  We--all of us; the confirmation process--have victimized Dr. Ford, 
and we have victimized Judge Kavanaugh. Until 2 weeks ago, Judge 
Kavanaugh had a reputation among most people who had ever heard of him 
as one of the leading scholars, judges, and teachers in America. I 
believe he is that, which is why I am voting for him. I am glad we are 
voting for him.
  I hope we all pause for a moment and listen to what Senator Collins 
said.
  I will conclude where I started. There may have been a time when 
there were more eloquent Senators who made more compelling speeches 
down the hall in the Old Senate Chamber--we know their great names--but 
her speech today stacks up with the best of them.
  I have heard speeches in this body for nearly half a century, both as 
a young aide and as a Member of the U.S. Senate, and I will remember 
this one. It is not just because I happen to agree with her, but 
because she showed characteristic diligence, independence, fairness, 
and a suggestion of the lessons that we should have for the future of 
this unique institution and this unique country that we prize so much.
  I am going to think about what she has said. I hope other Members of 
the body do, and I hope many other Americans do as well.
  Thank you.
  The PRESIDING OFFICER. The majority leader.
  Mr. McCONNELL. Mr. President, in listening to the Senator from 
Tennessee, I am reminded that he and I were here in those days as young 
staffers. I was working for the Senator from Kentucky when Margaret 
Chase Smith was still here. She had already made her reputation by 
being the first Member of the U.S. Senate to take on Joseph McCarthy 
and his tactics. It took the Senate a couple of years to finally 
develop the courage to stand up to this demagogue and the tactics he 
employed.
  Those of us who are in the Chamber today have had a unique 
opportunity to listen to a great statesman from Maine once again talk 
about this institution and how it ought to treat matters like this and 
to think about how we can rise above the depths to which we have sunk 
during this process.
  I want to thank the Senator from Maine. I have not heard a better 
speech in my time here, and I have been here a while. It was absolutely 
inspirational.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM. This is as close to McCarthyism as I hope we get in my 
lifetime. You are guilty until you are proven innocent. Whatever it 
takes to take you down, we will do. If one allegation is not enough, 
how about five? To the people who have come forward, we will do 
whatever we have to do to you to get the outcome we want.
  There are two ways of doing this: Senator Collins's way or what we 
have seen in the committee. If you want to go down the road of the 
committee, God help those who will follow.
  The biggest winners today are those who still want to be judges. You 
may have saved those who want to come after Judge Kavanaugh from 
humiliation to the nth degree because you rejected it today.
  For every woman who comes forward about a sexual assault, only God 
knows how many never say a word. But to right one wrong, seldom does it 
help to create another.
  Senator Collins explained the dilemma we face as a society and 
rejected the idea that sacrificing Judge Kavanaugh's good name would 
make anything better.
  To the extent that individuals matter in America, you rose to the 
occasion. To the extent that you rejected the mob rule and accepted the 
rule of law, we will all be better.
  You have to have some way of judging. Yes, we want people to come 
forward. They deserve to be heard. But there needs to be a process, for 
the good of us all, to make sure it is disposed of right. If this is 
enough, to be accused of something that happened 36 years ago and 
nobody can corroborate it, God help us all in any line of public 
service.
  All I can say is that it is not about you. I have never admired you 
more, and we often agree, and sometimes we don't. It is about the 
system that you stood by today that has stood the test of time. I don't 
know what kind of pressure there has been for you. I can only imagine 
because you are in a purple State.
  I remember what Sotomayor and Kagan were for me--not very 
comfortable, but I tried to embrace a system that has stood the test of 
time. But whatever happened to me, it has been 100 times worse for you.
  Senator Flake, thank you. Without Susan Collins and Jeff Flake, we 
would not have heard from Dr. Ford, maybe, but you stood up and said 
that she needs to be heard. Without their insistence that the FBI check 
the committee's homework, we wouldn't be where we are today. So you did 
a good thing.
  The one thing you wouldn't do is be intimidated. The one thing you 
wouldn't do is destroy Judge Kavanaugh's life for no good reason. The 
one thing you wouldn't do is play politics with the law. God bless you. 
I doubt if I will ever hear anybody more courageous in my political 
life.
  So when they write the history of our times, you will be in it. If 
John McCain were here, he would be your greatest cheerleader.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. MERKLEY. Mr. President, I wish my colleagues were here to share 
in this dialogue because there is such an absence of other Members 
sharing with each other their perspectives. We have a world that is 
enhanced by a media world that lives in a different universe that 
accentuates the differences between the parties.
  I think we are on a course that does deepen the differences across 
America. I hope there is some way we can find in this Senate to be able 
to communicate across that growing chasm in a more effective manner.
  I have heard many of my colleagues speak to the issue of fairness on 
this floor. I offer just a brief, couple of sentences of points for you 
to consider as to why not all of America shares the perspective that 
this has been fair.
  When Dr. Ford was invited to come to speak to the committee, she said 
that she would like to come, but she wanted some time, and she would 
like to have corroborating individuals be able to appear before the 
committee. That was denied by the committee, and that bothered many 
people in this Chamber a great deal. Even in 1991, Anita Hill was given 
that opportunity.
  What is also very bothersome to individuals is that Dr. Ford had put 
forward a list of eight individuals whom she had asked the FBI to talk 
to, to be corroborating witnesses, and the FBI could talk only to those 
within the scoping document that comes from the White House because, at 
that moment, they are not doing a criminal investigation, they are 
doing a background investigation, and they have to follow the 
President's instructions. Those instructions, we are told, were not to 
talk to any of the corroborating witnesses, not the 8 she put forward 
and not the 20 who were put forward by Debbie Ramirez. So 28 
individuals were not brought before the committee and not talked to by 
the FBI.
  I hope we have lots of opportunities to share our perspectives across 
the aisle to understand as we struggle with the issue of fairness 
because for many of us, fairness has not been achieved. The bigger 
message to these two women who came forward to share their journeys, to 
share their experiences, is that the U.S. Senate was unwilling to hear 
them out, unfortunately.
  Thank you.
  The PRESIDING OFFICER (Mr. Sasse). The Senator from Michigan.
  Ms. STABENOW. Mr. President, I am rising today at a very important 
time for our country because who sits on the Supreme Court matters. It 
really matters. From healthcare to civil rights, to the safety of the 
air we breathe and the water we drink, to the ability to raise our 
families and pursue the

[[Page S6590]]

American dream, to the very health of our democracy, decisions made by 
the Supreme Court affect us every single day.
  As my colleagues know, I was born in Michigan. I have lived in 
Michigan my whole life. My whole family is still in Michigan. I am so 
grateful for that. Every decision I make in the U.S. Senate puts the 
people of Michigan first. My decision to oppose Judge Brett Kavanaugh 
is no exception.
  The allegations that have been made against Judge Kavanaugh deserve 
to be taken extremely seriously. Even before the allegations came to 
light, Judge Kavanaugh's record and his writings too often have gone 
against what is best for Michigan families.
  When confronted with cases that have special interests on one side 
and people on the other side, he has consistently sided with the 
special interests. That is certainly true when it comes to healthcare. 
Healthcare isn't political; it is personal for every single one of us. 
Michigan families know what they need: quality, affordable healthcare, 
including prescription drugs, and Michigan women deserve to make their 
own reproductive health decisions.
  Right now, a court case is pending in which the Trump administration 
is refusing to defend the law that protects people with preexisting 
conditions--people like Amy, a small business owner with chronic 
leukemia, and Louisa, a beautiful little girl born with half a heart. 
Half of Michigan families include someone with a preexisting condition, 
like high blood pressure, heart disease, asthma, diabetes, cancer. They 
deserve to know that healthcare will be there when they need it.
  Yet, if this case were to come before the U.S. Supreme Court and if 
Judge Kavanaugh were a member, I believe many families in Michigan 
would find themselves with no coverage and no care. We need judges who 
will make decisions based on what is best for people--not drug 
companies, not insurance companies, but for people.
  A second issue on the minds of our families is our water and the 
Great Lakes, just like the people of Flint who still struggle with lead 
in their water. Ask the people in at least 15 Michigan communities 
whose water is contaminated with what we now call PFAS chemicals. That 
is an industrial chemical that has been linked to cancer and other 
diseases. Again and again, Judge Kavanaugh has ruled on behalf of 
polluters, not people.
  In one case, he argued that the Environmental Protection Agency 
exceeded its authority by trying to address pollution from one State 
that drifted into another State--as if somehow the air was going to 
stop at the border. Thankfully, the Supreme Court voted 6 to 2 to 
overturn his decision. What would happen to our air and water if he is 
one of the people who is deciding this, particularly if he were to be 
the tie vote?
  Third, I am deeply concerned by his belief in essentially unlimited 
Presidential power. In 2016, when asked what single case he would like 
to see overturned, Judge Kavanaugh said he would like to ``put the 
final nail'' in a three-decades-old Supreme Court decision that said 
independent counsels investigating the President are constitutional.
  Judge Kavanaugh has also written that if a President doesn't like the 
law, he can simply decide it is unconstitutional. He can simply refuse 
to enforce it. That might be how things work in Russia, in North Korea, 
and in Syria. It is not how things are supposed to work in America 
under our democracy.
  We have three separate branches of government. We need judges who 
will ensure that no one--no one, not even the President of the United 
States--is above the law.
  Also, Judge Kavanaugh's views on what we now call dark money in our 
elections also concerns me greatly. In one 2011 case, Judge Kavanaugh 
ruled that foreign nationals could not campaign for or contribute money 
to candidates. That sounds good. Unfortunately, he then went on to say 
that foreign nationals can take part in issue advocacy--giving money 
for issue advocacy in American elections. In other words, Russians can 
contribute as much as they want to an issue group, which can then spend 
on behalf of candidates.
  In this way, Judge Kavanaugh opened the door for unlimited dark money 
from foreign nationals--foreign entities in our American elections. Do 
we imagine he will rule differently from a seat on the U.S. Supreme 
Court?
  Finally, there are the very serious allegations made against Judge 
Kavanaugh and serious questions about how he has responded to them.
  In this country, we have due process. We want accusers to be heard 
and the accused to be able to defend themselves. That is why it is so 
important that we heard from both Judge Kavanaugh and Dr. Christine 
Ford.
  I found Dr. Ford to be highly credible. Her testimony was heart-
wrenching. I believe Dr. Ford. Her story resonated with so many women 
because many of us have felt that same fear and heard the same laughter 
that she described. It takes an incredible amount of courage to speak 
up, and I know women across the country are grateful to Dr. Ford for 
doing so. I am grateful for the countless women who have called or 
written me with their stories of what has happened to them, oftentimes 
decades ago. I hope we are going to come to a point when all of this is 
over and use this as an opportunity to make sure that when something 
happens, women feel they can report it immediately and will be taken 
seriously, and we will have a due process system that works immediately 
to address these issues.
  I reviewed the FBI background file on Judge Kavanaugh. Unfortunately, 
I was very disappointed in the very limited scope. It did nothing to 
alleviate my concerns about the allegations, his truthfulness before 
the Senate Judiciary Committee, or his suitability to sit on the 
Supreme Court.
  Judge Kavanaugh's demeanor during the hearing was a shocking display 
of entitlement. No one is promised a Supreme Court seat or entitled to 
a job interview. There are many people qualified to hold that kind of a 
position. But his sense of entitlement and condescension toward members 
of the Senate committee who were simply doing their jobs was shocking 
to me.
  Again, no one is owed a seat on the U.S. Supreme Court. We are 
talking about a lifetime appointment and an immense amount of power 
over people's lives.
  Someone once said this: ``The Supreme Court must never be viewed as a 
partisan institution. The Justices on the Supreme Court do not sit on 
opposite sides of an aisle. They do not caucus in separate rooms.''
  That person was Brett Kavanaugh. He clearly has failed to meet his 
own standard. I know he has failed to meet mine.
  The people of Michigan deserve better. The people of America deserve 
better. They deserve someone on the Supreme Court who understands their 
lives and will stand up for them, not special interests.
  They deserve someone on the Supreme Court who understands that 
nobody--not even the President of the United States--is above the law.
  They deserve someone on the Supreme Court who will work to keep dark 
money from foreign entities out of our elections.
  And they deserve someone on the Supreme Court who has consistently 
lived up to the high standards we ought to demand of our Nation's 
leaders.
  In Michigan, we teach our children that character matters. Now it is 
time to show that we mean it.
  I urge my colleagues to vote no on Brett Kavanaugh's confirmation to 
the U.S. Supreme Court.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Ms. HASSAN. Mr. President, I rise today to join my colleagues in 
expressing my opposition to Judge Kavanaugh's nomination. I will speak 
later in the evening about my overall assessment of Judge Kavanaugh's 
record and nomination and about why I think some of my colleagues on 
the other side of the aisle are focusing on the wrong thing in deciding 
to support him.
  To echo my colleague from Michigan just now, no one has a right to a 
seat on the U.S. Supreme Court. What we should be focused on is that 
the country has a right to an impartial, nonpartisan U.S. Supreme 
Court. They have a right to Justices whose character and fitness for 
the office is beyond reproach and beyond doubt. Despite everything I 
have heard from Judge Kavanaugh's supporters, I do not think they can 
make that case.

[[Page S6591]]

  My purpose in speaking right now is to express my deep concerns with 
Judge Kavanaugh's record of ruling against access to healthcare.
  If confirmed, Judge Kavanaugh will be a deciding factor in the lives 
and livelihoods of millions of Americans. Yet, time and again, he has 
demonstrated a commitment to a partisan agenda that would strip away 
care from some of our most vulnerable people.
  As recently as 2017, Judge Kavanaugh criticized Chief Justice 
Roberts' decision upholding the Affordable Care Act, and in his 
confirmation hearing, Judge Kavanaugh would not commit to upholding 
legal protections for people with preexisting conditions--preexisting 
conditions such as asthma, cancer, diabetes, and more.
  Confirming Judge Kavanaugh to the Supreme Court would put those 
protections at risk. I have heard from people across New Hampshire who 
are concerned about what will happen to them if they are denied 
coverage because of their preexisting condition. People like Kristen 
from Derry, NH. Kristen relies on medications that cost more than 
$1,200 every month to stay healthy, but if she lost her insurance 
because of her preexisting condition, she would not be able to afford 
that medication. Kristen said:

       I wouldn't be able to breathe correctly. My COPD would 
     worsen. My current standard of living--working full time as a 
     social worker, a runner, active with my children--would 
     quickly come to an end.

  That is what is at stake with this vote.
  Republican attorneys general, backed by the Trump administration, are 
suing to eliminate protections for preexisting conditions. This case 
will soon be in front of the Supreme Court, and the next Supreme Court 
Justice could very well be the deciding vote in that decision.
  We need a Justice who would rise above partisanship, someone who will 
act impartially and rule on behalf of what is right for the American 
people. It is evident Judge Kavanaugh is not that person, and there is 
no reason to believe he would be an impartial arbiter when it comes to 
issues related to healthcare.
  Throughout this confirmation process, Judge Kavanaugh has revealed 
himself to be staunchly partisan, and never was that more clear than 
during his hearing on the allegations raised by Dr. Christine Blasey 
Ford.
  During that hearing, he called those credible allegations against him 
``revenge on behalf of the Clintons'' and seemed to threaten his 
political enemies by saying: ``What goes around comes around.''
  There is ample reason to believe that Judge Kavanaugh would be an 
ally on the Supreme Court for the Trump administration and Republicans 
in Congress who are seeking to undermine our healthcare system, and for 
the health and well-being of Granite Staters and all Americans, I 
cannot support his nomination.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. MENENDEZ. Mr. President, I rise today to oppose Brett Kavanaugh's 
nomination to the Supreme Court and to ask my colleagues--Republicans 
and Democrats alike--to recognize exactly what is at stake here. The 
philosopher Nietzsche once said that if you stare long enough into the 
abyss, the abyss will stare back into you.
  My friends, we here in the U.S. Senate are staring into the abyss. 
What is staring back at us is a future in which the American people's 
trust in the Supreme Court is being irreparably damaged.
  To vote yes on Brett Kavanaugh is to send a message to every woman in 
America that your voice doesn't matter. If you risk everything--your 
security, your stability, your reputation--to come forward and speak 
truth to power about a sexual assault, they will call you credible. 
They will call you courageous. Yet they will not believe you.
  It is a message that says, if you have survived a sexual assault, 
don't bother telling anyone because you must be mistaken. This 
traumatic and unforgettable moment in your life never happened. It must 
have been someone else.
  My friends, to confirm Judge Brett Kavanaugh with what we now know 
would be to forever tarnish the credibility and reputation of the 
highest Court in our land. Here is what we know. We know Judge 
Kavanaugh faces multiple credible allegations of sexual assault. Yet 
the investigation that was conducted looks nothing like the FBI 
investigation that was promised--not by President Trump, not by the 
Senators who called for it, or by anyone else.
  We know neither Dr. Ford nor Judge Kavanaugh was interviewed by law 
enforcement--the very essence of what the subject of the investigation 
is. Neither of them was interviewed. We know dozens of people with 
corroborating evidence were flatout ignored by investigators.
  I have heard some of my colleagues call this investigation thorough. 
How do you call an investigation thorough when neither the accused nor 
the accuser was interviewed by the FBI?
  How do you call an investigation thorough when 40 corroborating 
witnesses who volunteered information to the FBI in recent days were 
reportedly ignored? You can't get corroboration if you don't talk to 
corroborating witnesses. The answer is simple: It is not thorough, and 
it is not trustworthy.
  This entire process, including the use of Executive privilege to deny 
the Senate access to hundreds of thousands of documents of Judge 
Kavanaugh's, has been shrouded in secrecy. And why the secrecy? Because 
President Trump and his team are desperate to get Judge Kavanaugh 
confirmed by any means necessary.
  Let's remember what is going on. The President of the United States 
is the subject of a Federal investigation into whether his campaign 
accepted assistance from a hostile foreign power during the 2016 
election. Already, the President's campaign chairman, Foreign Policy 
Advisor, and former National Security Advisor have pled guilty to 
Federal crimes.
  He could have chosen any of the judges included on the rightwing list 
assembled by the Heritage Foundation and the Federalist Society. 
Instead, he picked the one judge with unprecedented views of 
Presidential power. There is no other explanation for President Trump 
choosing Brett Kavanaugh that I can think of other than he hopes this 
will be his get-out-of-jail card.
  The last few weeks have been a flurry of breaking news alerts and 
breathless gossiping in the halls. I am thankful for Dr. Ford's courage 
and candor. She spoke her truth and has inspired countless others to 
break their silence. I believe her. I believe survivors. New Jersey is 
home to 1.8 million survivors. That is 1.8 million reasons to oppose 
Brett Kavanaugh.
  According to the Bureau of Justice Statistics, less than a quarter of 
sexual assault victims reported those incidents to police in 2016. 
After this past week, it is all too easy to see why.
  Leader McConnell has called the allegations of Dr. Ford 
``unsubstantiated smears.'' What an insulting statement. When will we 
as a society begin to believe women, to trust women? It can't come soon 
enough.
  I was in the midst of my first campaign for Congress when Anita 
Hill's allegations of sexual assault against Justice Clarence Thomas 
were investigated but ultimately disregarded by the Senate. I am proud 
to have been elected to the House in 1992, the so-called Year of the 
Woman.
  Across the Capitol, a record four women were elected to the Senate. 
My colleague Patty Murray decided to run after watching what happened 
to Anita Hill. She is still here fighting for survivors, and I am proud 
to have her as my colleague.
  We look back at the Clarence Thomas hearings as a moment that failed 
America and failed all survivors of sexual assault. Yet here we are in 
2018, and it appears as though we have made little progress.
  After Dr. Ford's testimony, my Republican colleagues and even 
conservative pundits praised her credibility. It only took Judge 
Kavanaugh's outrageous performance--a performance we now know was 
misleading at best and untruthful at worst--for these same Republicans 
to cast her aside. The message they have sent to survivors who are 
brave enough to come forward is clear: We will listen to you, but we 
will not believe you, and we will not trust you.
  Despite having the cards stacked against her, I was shaken to the 
core

[[Page S6592]]

by Dr. Christine Blasey Ford's words last week. She answered every 
question with bravery, with candor, and with humility. Meanwhile, Judge 
Kavanaugh was evasive, belligerent, and, according to many of his 
acquaintances, repeatedly untruthful.
  What my Republican colleagues can't seem to grasp is that you can be 
at the top of your wealthy prep school class and still abuse women. You 
can be a Yale Law School graduate and still abuse women. Unfortunately, 
you can even be the President of the United States and still abuse 
women.
  Furthermore, Judge Kavanaugh's partisan outburst was downright 
disturbing for a potential Supreme Court Justice. How many norms did 
Judge Kavanaugh shatter in that hearing room? It is one thing to be 
emotional; it is another to call the allegations of Dr. Ford or Deborah 
Ramirez and others a coordinated leftwing conspiracy and an act of 
political retribution for the Clintons. He said the questions posed by 
Democratic Senators during his confirmation hearing were ``an 
embarrassment'' and called the process a circus--this coming from a man 
who pressed Ken Starr to ask President Clinton sexually explicit 
questions. And we all know the circus the Starr investigation turned 
out to be. But I guess the same standards don't apply to Brett 
Kavanaugh. If you are Brett Kavanaugh, you can lie under oath about 
things big and small and never face the consequences.
  At the end of the day, Judge Kavanaugh's hysterical political rant 
confirmed what many of us already knew about this man: He is a 
political operative cloaked in judicial robes. As Kavanaugh himself 
said, ``What goes around, comes around.'' Do those sound like the words 
of an impartial, independent judge?
  Never before in my life have I seen a nominee, let alone a Supreme 
Court nominee, behave as though he were entitled to this lifetime 
appointment. He is not. It is the American people who are entitled to a 
Justice who tells the truth, who conducts himself in a dignified 
manner, a Justice who doesn't face credible accusations of sexual 
assault.
  The Supreme Court deserves better than Brett Kavanaugh, and so do the 
American people. More than 1,000 legal scholars--and counting--agree, 
coming out against Kavanaugh's nomination because his partisan and 
venomous rhetoric has no place on the Supreme Court.
  This process has further poisoned the confirmation process. It was 
Senate Republicans who orchestrated the theft of a Supreme Court seat 
with more than 9 months left in President Obama's term. Apparently, 
being nominated by President Obama is more disqualifying than being 
accused by multiple women of sexual assault. It is clear my colleagues 
will stop at nothing to tip the scales of justice against women, 
consumers, and patients for generations to come.

  For women, the stakes couldn't be higher. President Trump promised to 
only nominate judges who would overturn Roe v. Wade. And, yes, earlier 
today, a colleague of mine pointed out that the Republican National 
Committee platform has long included overturning Roe v. Wade. In my 
view, that is precisely why we cannot trust a longtime GOP political 
operative like Brett Kavanaugh to uphold a woman's right to choose. 
There is a difference between saying that precedent deserves respect 
and saying that it cannot be overturned. They are not the same. I think 
some of the things I have heard about the aspirations of some of my 
colleagues about Judge Kavanaugh are unlikely to be realized.
  This is what is at stake here: the basic principle that women have a 
right to make their own private medical decisions. My daughter has 
grown up never knowing what it was to live in a country where women 
were denied reproductive rights. Now I fear my granddaughter may grow 
up never knowing what it was like to live in a country where women had 
reproductive rights.
  It isn't just women's health that is at stake. The Trump 
administration is arguing in Federal court as we speak that the ACA's 
protections for preexisting conditions are unconstitutional, which 
makes Judge Kavanaugh's record of ruling against consumers and siding 
with corporate interests all the more troubling.
  There are 3.8 million New Jerseyans who have preexisting conditions--
some illness during the course of their lives, heart attack, diabetes, 
Parkinson's, maybe some birth defect that in the past had denied them 
insurance coverage. We eliminated that under the Affordable Care Act. 
No more discrimination. There are 3.8 million New Jerseyans who have 
preexisting conditions. For me, those are another 3.8 million reasons 
to oppose Kavanaugh's confirmation.
  So, yes, the stakes have never been higher. The threat to our 
democracy is real. The decisions coming down from a Supreme Court with 
Kavanaugh will change the course of America for decades to come.
  The Republican majority views the Supreme Court as an instrument to 
force an unpopular, anti-woman, anti-worker, anti-civil rights agenda 
on the American people. Meanwhile, President Trump views the Court as 
yet another weapon to flout the rule of law.
  Well, it is time we take a stand for the integrity of our democratic 
institutions. It is time we live up to our duty set forth by article II 
of the Constitution to provide advice and consent on Supreme Court 
nominations. In bestowing on us this responsibility, the Framers 
entrusted us with protecting the reputation and credibility of the 
highest Court in our land.
  To confirm Judge Kavanaugh in the face of these allegations; in the 
face of the secrecy of the documents we could not obtain; in the face 
of the positions he took that are clearly, in the minds of many of us, 
untruthful before the committee, risks forever tarnishing one of the 
crown jewels of our democracy.
  My friends, we are standing on the edge of a cliff. Should we blindly 
go over that edge, we risk doing irreparable damage to the reputation 
and credibility of the Supreme Court. I implore my colleagues in the 
majority to pull us back in the direction of truth and decency. This 
isn't about right or left; this is about right and wrong.
  A vote to confirm Brett Kavanaugh is a vote against survivors of 
sexual violence. A vote to confirm Brett Kavanaugh is a vote to 
overturn Roe v. Wade and end safe and legal abortion in this country. A 
vote to confirm Brett Kavanaugh is a vote to overturn protections for 
preexisting conditions. A vote to confirm Brett Kavanaugh is a vote to 
roll back civil rights and voting rights. It is a vote that will take 
us back to a time and place none of us, I believe, wants to go to. And 
it is a vote the American people will not forget--not today, not 
tomorrow, not this November, not ever.
  I yield the floor.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Johnson). The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. LEE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. LEE. Mr. President, it is an understatement to say that the last 
few weeks have been unusual in Senate history. I have never seen 
anything like it in the 8 years that I have been serving in this body. 
Every day when we show up to work, as we walk to our offices, we have 
to walk through a sea, a mob, of angry protestors, people screaming, 
shouting, yelling things at us--not pleasant things. In many instances, 
Members have to be accompanied as they walk to and from their offices, 
to and from the Senate floor where they cast their votes, to and from 
their committee hearings, in and out of rooms where they have to 
conduct their business.
  This is unusual. It is unpleasant. It is relatively unprecedented, 
certainly, in the time that I have been here. It is unfortunate and 
unnecessary. You see, this is not how the process is supposed to work.
  This is not what the Constitution contemplates or requires in 
connection with the confirmation of a Supreme Court nominee. It doesn't 
need to work this way, but in this case, it did. It did because a lot 
of people, starting with a small handful of people, made a deliberate 
choice to depart from the norm,

[[Page S6593]]

to depart from rules, practices, and operating procedures that are 
designed to protect the innocent and the guilty, designed to protect 
accusers and the accused, designed to protect the privacy of people who 
come forward with allegations as well as those who have been nominated 
to serve in high positions.
  The allegations brought forward by Dr. Christine Blasey Ford were 
serious. I still remember and will never forget the precise moment when 
I was briefed on the nature of these allegations on September 13, 2018. 
I was briefed by a small handful of Judiciary Committee staffers who 
had clearance to read to me an FBI document they had just received. I 
wasn't allowed to share the details of that communication with anyone--
not even members of my own staff--because at the time they were 
confidential, couldn't be discussed with the public, and couldn't be 
discussed with anyone who hadn't received specific clearance from the 
FBI to do so. At the time these allegations were brought forward, I was 
able to tell my staff only the following: The allegations raised by 
this individual--I didn't know her name at the time--are serious. They 
are serious to the point that I will not support this nominee. I cannot 
and will not vote to confirm this nominee if these allegations are 
true, but the allegations are of such a nature that they could be 
looked into. We can discern whether or not they could be corroborated. 
We can interview witnesses in an effort to get to the truth.
  Over the last roughly 3 weeks, that is what has happened. We have 
undertaken everything we know how to do to get to the truth.
  We have had FBI agents interviewing witnesses. We have had witnesses 
interviewed by committee staff. We ourselves have interviewed Dr. Ford 
and Judge Kavanaugh. It was at the hearing where we heard from Dr. Ford 
and Judge Kavanaugh when we learned for the first time that Dr. Ford's 
attorneys--I will just state here parenthetically--were oddly 
recommended by the ranking Democrat on the Senate Judiciary Committee. 
But Dr. Ford's attorneys--those same attorneys recommended by the 
ranking Democrat on the Senate Judiciary Committee--failed to ever 
inform Dr. Ford that, from the outset, she wouldn't have to go through 
the process this way. From the outset, she could have and would have 
been given the opportunity to tell her story in private to FBI agents 
who would have met her at her home in Palo Alto, CA, interviewing her 
in the privacy and comfort and protection of her own home with 
confidentiality.
  That separate group of FBI agents could have and would have then 
visited Judge Kavanaugh and any of the other alleged eyewitnesses to 
this event, and at that point those reports would have been collected 
and eventually handed over to the Senate Judiciary Committee.
  The committee then could have and would have had the opportunity to 
convene a closed hearing and to investigate these allegations without 
having to subject anyone to the indignity of discussing very detailed 
private circumstances of their lives in front of the American people.
  It remains clear to me that Dr. Ford never wanted a circus. She never 
asked for any of this. She was reluctant to come forward. Ultimately, 
she agreed to allow her name to be released at the moment she 
recognized that there were enough people who were going to figure out 
who she was, but she didn't want to have to tell her story in public. 
She could have and would have and should have been given the 
opportunity to tell her story in private, but that is not how it 
happened because her lawyers didn't tell her.
  Even after her name came forward, even after she felt compelled to 
disclose her name, her lawyers apparently didn't tell her that 
Judiciary Committee staff would be willing to fly out to California and 
meet with her in private in her home or anywhere else she wanted to 
meet. That apparently was not communicated to her. One must ask the 
question why. Why didn't they tell her that? I don't know. At this 
point I can't know that.
  The conversations that occur between attorneys and their clients are 
typically and permanently confidential, but just as an objective 
witness to a lot of this and, again, not privy to their private 
conversations, I have to wonder whether at best her lawyers may have 
been neglectful in telling her that she had those options. At worst, 
they may have deliberately sacrificed her privacy, her comfort, and her 
interests in pursuit of their own vain ambitions or perhaps a political 
agenda. Either outcome is unfortunate. Either way we got there led to 
the same outcome, and we are where we are.
  For the last 3 weeks we have done everything we can to get to the 
bottom of these allegations. We have had witnesses interviewed. We 
ourselves have interviewed Dr. Ford and Judge Kavanaugh.
  At the end of this, what we see is someone who has been badly hurt. 
It is apparent to me that Dr. Ford was harmed and has endured deep 
pain. Someone hurt her, and they hurt her badly, but there is nothing 
to corroborate her allegation that it was Judge Kavanaugh who hurt her.
  Not one of the alleged eyewitnesses to this event can confirm that 
such a gathering ever occurred, either in the summer of 1982 or at any 
other time--not one. A number of the witnesses have said that not only 
do they not remember such an event ever occurring but that this type of 
event with this set of circumstances and with this combination and 
number of people would not have happened. This is not how they 
gathered.

  So we are left with an uncorroborated accusation against an 
individual who has led an exemplary life, a life of public service that 
includes now 7 FBI background investigations and some 150-plus 
interviews conducted by the FBI. Again, a lot of that was conducted 
prior to his appointment to the U.S. Court of Appeals for the DC 
Circuit, where he served for 12 years and published some 300 opinions, 
in which he has had no objective other than to find the right answer 
under the law.
  This is someone who is a model, exemplary citizen from everything we 
can tell. He serves his community. He feeds the hungry. He clothes the 
naked. He serves his fellow beings with a love and an admiration for 
them that is genuine, distinct, and consistent. Against this backdrop, 
we cannot, we will not, we must not take a single uncorroborated 
allegation and sink this man's hard-earned good name. The demands of 
justice are such that we have to hear accusers and those who have been 
harmed, but without corroboration we cannot assume someone to be guilty 
in the absence of an adequate evidentiary foundation.
  So I would add here that maybe we do know something more than that 
because other allegations have come forward. Well, yes, there are other 
allegations, but let's talk about the other allegations for a minute.
  The Ramirez allegation came forward about a week after the Washington 
Post announced Dr. Ford's name. A story by The New Yorker was itself 
debunked less than 24 hours after the story was run--debunked by the 
New York Times, which acknowledged having interviewed literally dozens 
upon dozens of witnesses in an effort to find corroboration for the 
Ramirez allegations. Not one person could or would corroborate the 
story--not one. Moreover, as the New York Times concluded, there were a 
number of instances in which Ms. Ramirez herself, in calling former 
classmates from Yale, acknowledged that she didn't know whether or not 
it was Brett Kavanaugh who engaged in the conduct she alleged.
  The other allegation brought forward by the client of Mr. Avenatti 
was itself on its face of a different sort than the others. This 
allegation was brazen in what it assumed about Judge Kavanaugh and what 
it asked the public to believe. It accused this man, this lifelong 
public servant, of engaging deliberately in a sustained criminal 
enterprise that had as its object the deliberate drugging and gang rape 
of young women. Here, again, is a story that could not find a single 
shred of corroboration and was severely undercut by a number of other 
factors, including the fact that the accuser herself was not even in 
high school at the same time as Judge Kavanaugh, and no one alleged to 
have been present had any recollection either of the parties described 
or of any of the circumstances surrounding these alleged events.
  But the timing of these other allegations coming forward was 
nonetheless

[[Page S6594]]

used to smear the good name of Judge Kavanaugh and to imply some sort 
of guilt on the part of Judge Kavanaugh and some sort of corroboration 
of the Ford allegation. Again, the Ford allegation was itself serious 
and had a lot of indicia of credibility on its face. That is why I was 
so concerned the moment I heard about it. That is why we have now spent 
3 weeks doing everything we can to get to the bottom of it and finding 
no corroboration.
  But here we are with these protests going on, with a sea of angry 
people shouting at us everywhere we go; chasing Senator Cruz and his 
wife out of a restaurant as they were peacefully enjoying dinner; 
verbally and physically assaulting Senator Perdue and his wife as they 
were making their way from a flight into Reagan National Airport to 
their vehicle, for a sustained period of 30 minutes, including a moment 
when Mrs. Perdue was nearly pushed down a flight of stairs. These 
incidents come in the wake of other unfortunate events, including a 
moment when Rand Paul was attacked at his home and broke six ribs, 
causing him excruciating pain and injuries that have the potential of 
affecting him for the rest of his life. This same Rand Paul was himself 
also the potential victim of a shooting when a crazed leftist decided 
to show up at a Republican baseball practice and opened fire on 
Republican Members of Congress simply because they were Republican 
Members of Congress, almost killing Congressman  Steve Scalise in the 
process.
  This moment of emotional intensity came as a result of a process that 
some are now struggling to say is broken. I insist that it is not. The 
process isn't broken. There is nothing wrong with the Constitution. It 
certainly is not broken. To the extent something wrong happened here, 
it is not because the thing itself doesn't work or because it is flawed 
by its very nature. It is because in this instance, the left broke it. 
The left sabotaged it. The left deliberately impeded its ability to do 
what it was supposed to do.
  It is not as though this isn't without precedent. They have done this 
in the past. They have done it for decades. They did it with Judge 
Bork, when they converted his last name into a verb when they accused 
him of being a racist and a sexist. They pretended to be outraged when 
they found out that Judge Ginsburg had smoked marijuana. Then, a few 
years later, they engaged in a high-tech public lynching of Clarence 
Thomas. They later did it again to Sam Alito, calling him a racist. 
Then they did it to Neil Gorsuch, calling him a sexist.
  These efforts aren't limited, of course, to Supreme Court nominees. 
They also deliberately went after Miguel Estrada, specifically and 
admittedly because he was Latino. They tried to take down Amy Coney 
Barrett's nomination to a Federal appellate court because they 
considered her ``too Catholic.''
  This is unacceptable. We have been asked to settle for this. It is 
not time to settle. It is time to expect more. It is time to demand 
more. It is time to demand a process that is respectful of human 
beings--of the accusers and the accused in the world. It is time to do 
this in a manner that respects this institution and allows us to 
respect each other.
  You have to remember that when we reduce our arguments from matters 
of policy, in which we acknowledge good faith disagreements, to simple 
and emotional questions of good versus evil, people are going to tend 
to believe that characterization. Ultimately, they are going to tend to 
act on that characterization.

  The results will not always be pretty. At some point, this descends 
to a moment when the victim will no longer be someone's character or 
reputation or pride or the quiet enjoyment of someone's dinner or the 
ability of someone not to be injured while mowing his lawn. At some 
point, this is going to be one of us or it is going to be someone's 
husband or wife, someone's children.
  Earlier this week, we received news that someone had deliberately 
released personal, private information regarding Members of the 
Senate--Republican Members of the Senate, not coincidentally--with the 
promise and the threat that even more information would be released, 
including information about medical records and histories of our 
children, for the specific purpose of influencing and intimidating 
Members into taking a particular position on this nomination. This is 
unacceptable.
  It is also unacceptable that in the response to the attack on Rand 
Paul, which I mentioned a moment ago, an MSNBC anchor actually referred 
to that horrific event for Senator Paul and his family as one of her 
favorite stories. That is not OK.
  All of this hurts real people, not just Members of the Senate, not 
just Dr. Ford and her family or Judge Kavanaugh and his family, 
although it certainly hurt them. It also hurts the Senate. It hurts the 
Supreme Court. It hurts our very constitutional Republic as it was set 
up, as it was designed.
  So again, we get back to this question: Why does this happen? I think 
a lot of it has to do with the fact that it happens because you cannot 
take this many eggs from the American people and put them in one basket 
without creating a lot of really high, intense emotions.
  You cannot require the American people to work many weeks or many 
months out of any year just to pay their Federal taxes and not have 
them be very emotional about what happens in Washington.
  You cannot concentrate this much power in Washington, DC, and take 
power away from the American people, where the power is supposed to be 
mostly exercised at the State and local levels, and move it away from 
them in two steps: first, from the people to Washington and then, 
within Washington, from the people's elected representatives, who are 
supposed to make law, to unelected, unaccountable bureaucrats, who make 
law without any accountability to the people. You cannot do that 
without unavoidably, inevitably, and unsustainably raising the 
political temperature in this country. It cannot be done. It is the 
nature of the thing itself.
  Sometimes we have to stop giving in to the impulse to expand the size 
and scope and reach of the Federal Government because it tends to make 
the people less powerful. The whole system was set up so as to lower 
the political temperature in the country.
  We are a diverse country. In one way or another, there has always 
been great diversity within the country, among and between the States 
and their different populations. This was understood by the Founders; 
it is understood today. This is one of the reasons why, by divine 
design, this whole thing was set up in such a way as to lower the 
political temperature in Washington by keeping most decisions close to 
the people at the State and local levels, recognizing that there is a 
whole lot more unity at the State and local levels than there is at the 
national level. That is why most powers are supposed to remain close to 
the people through the States and localities.
  Sometimes our instincts are wrong. Sometimes our instincts lead us 
into danger. Sometimes we fear the wrong things.
  People in this country, understandably, are terrified, scared to 
death of rattlesnakes. I myself am scared to death of rattlesnakes. We 
have them in my State of Utah. We don't like them. Most people are 
shocked, however, to discover there are many times more people killed 
every year as a result of deer than rattlesnakes. Deer, it turns out, 
cause all kind of accidents, which, in turn, result in a lot of 
deaths--many more deaths, many times more deaths every year than 
rattlesnakes. But we fear the rattlesnake more because it looks scary.
  Sometimes our instinct leads us in the wrong direction. Sometimes our 
instinct is to do something through government that might make matters 
worse rather than better.
  It reminds me of a time when I worked across the street at the 
Supreme Court of the United States. I was a law clerk to Justice Alito. 
My co-clerks and I worked in a relatively small office. We discovered 
something during the summer when we started our job. The air 
conditioning in our office made our office unbearably cold. It was so 
cold as we sat at our desk and wrote memoranda to the Justices and did 
our jobs, sometimes our hands would get so cold that we almost couldn't 
feel them. What did we do? We went over to the thermostat and turned up 
the thermostat, thinking that would solve the problem. But after

[[Page S6595]]

we turned up the thermostat, it didn't do any good. It was still 
freezing cold. At that point, we opened the window and let in the hot, 
muggy air that is known to inhabit and pervade Washington, DC, during 
the summer months. It was inefficient, but we couldn't figure out 
another way. We talked to the maintenance people in the building. They 
weren't sure what to make of it, so we moved on.

  As summer faded into fall and fall became winter, it got cold. We had 
a very similar problem, but in the other direction. When it got to be 
winter, when it was really cold outside, it was burning hot inside our 
office. It was so hot, we were sweating, so hot we felt compelled to 
walk over to the thermostat and turn the thermostat down, hoping and 
expecting, reasonably, that it would lower the temperature and 
alleviate our discomfort.
  It didn't do a bit of good. It was still burning hot. What did we do? 
We opened the windows. It was inefficient and created a weird feeling 
in the office--at times burning hot, at times freezing cold, depending 
how close you were to the window.
  After many months of this, the head maintenance inspector for the 
whole building came in and looked at the heating and air conditioning 
system within the office. After taking it all apart, he came to us and 
said: I think I have found your problem. Your thermostat was installed 
backward. Every time you were turning the thermostat up to raise the 
temperature, it was lowering the temperature. Every time you lowered 
the thermostat, it was, in fact, raising the temperature.
  Sometimes things have the opposite effect from what we want. I 
believe it has often been with the best of motives and instincts and 
intentions that we have taken power to Washington, DC, concentrating, 
centralizing more power here in Washington, DC, and then allocating it 
to unelected, unaccountable bureaucrats, and, in some cases, Federal 
judges.
  In the process, we disempowered the American people. We disconnected 
them from their own government. This, in turn, has raised the 
temperature when it comes to things like confirming a Supreme Court 
Justice. This, by the way, was often done in the past by a voice vote 
without even the need for a roll call vote. Sometimes it was done 
unanimously; sometimes it was done overwhelmingly. Not every nominee 
was confirmed. I don't think that should ever be the case.
  Even in George Washington's administration, not every nominee to the 
Supreme Court was confirmed, but nominees were treated with dignity and 
with respect. This occurred in part, I believe, because the 
Constitution kept the temperature appropriately moderated; the Federal 
Government was doing only those things that the Constitution 
unmistakably placed in the hands of the Federal Government and of 
Congress, which sets policy for the Federal Government. The people, in 
turn, remained in touch and connected to that government, to the extent 
it affected them, because that policy was still being set by the 
people's elected representatives in Congress and not by unelected, 
unaccountable jurists or bureaucrats.
  The opposite has happened since then. It is not the case that every 
Supreme Court nominee in recent history has brought about so much 
contention. You look at the confirmation process that led to the 
ultimate appointment of Ruth Bader Ginsburg, of Stephen Breyer, of 
Elena Kagan, of Sonia Sotomayor. These occurred in recent decades. 
These Justices were confirmed overwhelmingly, and they were confirmed 
with a lot of votes from Members of both political parties.
  It doesn't have to be as contentious as it always is, but in this 
instance, with Republican nominees--with conservative nominees--the 
left has been unwilling to allow the process to even move forward as it 
should and has chosen instead to smear these individuals and to treat 
them in an unkind, undignified manner.
  No mother and no father would want to see a son or a daughter 
subjected to this kind of treatment, not in our country, not for a 
position like this. No one would want that. It does not have to be this 
way.
  If we can correct course, if we can figure out that we have in some 
ways been working with a broken thermostat, if we can acknowledge the 
fact that in trying to make things better, sometimes we make them worse 
by bringing more power to Washington and then handing this power over 
to unelected, unaccountable bureaucrats and judges, we can do this. We 
can lower the temperature, lower the stakes in the United States of 
America.
  We live in a diverse Republic. We need to allow the people in all of 
their diverse viewpoints throughout the various States to work things 
out as they deem fit. Let Utah be Utah; let New York be New York; let 
Nebraska be Nebraska. We don't have to make as many decisions in 
Washington, DC, as we have been.
  I believe, ultimately, this will come down to a question like this. 
We have a choice to make--a choice between federalism; that is, 
restoring the proper balance of power between different actors within 
our system of government on the one hand, or contention and, 
ultimately, violence on the other hand.
  I choose the peaceful way. I choose the way that doesn't result in as 
much contention. I choose the constitutional way. I believe that 
document was written in such a way as to protect our liberty, to 
respect our divergent interests, and to allow the American people to 
flourish and prosper because not every decision would have to be made 
by the same people, and the government would remain accountable to the 
government. Federalism is the answer.
  At the end of this long and grueling process, I am grateful for the 
system we have. I hope we can return to its constitutional origins and 
respect the letter and the spirit of the Constitution of the United 
States.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CRUZ. Mr. President, I rise today to discuss the impending 
confirmation of Judge Brett Kavanaugh. It now appears that tomorrow, 
Judge Brett Kavanaugh will become Justice Brett Kavanaugh, an Associate 
Justice on the United States Supreme Court.
  It is worth pausing for a moment to reflect why that is of such great 
consequence for our country. In recent decades, the courts have seized 
more and more policymaking authority, have intruded into the authority 
of the democratically elected legislature, and have taken policy issue 
after policy issue from the hands of the American people and usurped it 
instead into the hands of five unelected judges.
  Given those stakes, the 2016 election in a very real sense was waged 
over what direction the Supreme Court would go, and there was a 
markedly different vision, a markedly different promise that was made 
by Donald Trump and Hillary Clinton. Donald Trump promised to nominate 
constitutionalists who would defend the Constitution and who would 
defend the Bill of Rights. That is what the people of Texas want, and I 
believe that is what the American people want--judges who will follow 
the law, who will be faithful to the Constitution, who will uphold our 
fundamental liberties--free speech, religious liberty, the Second 
Amendment, the 10th Amendment--the fundamental liberties protective of 
every American in the U.S. Constitution.
  The stakes here are high, particularly with this seat--the seat that 
was held by Justice Kennedy, a Justice who has been the swing vote for 
three decades now.
  Even though the stakes are high, what we have witnessed the last 
several weeks is unprecedented in the annals of confirmation battles. 
We saw initially a confirmation hearing that was relatively 
straightforward. It was marred by protests, coordinated with Democratic 
Senators, according to media reports. On the first day of the hearing, 
70 individuals were arrested for protesting and disrupting the hearing.
  But at the end of that opening week of hearings, not a single Senator 
on the committee had made the argument that Justice Kavanaugh was not 
qualified to be a Justice--by any measure, he is one of the most 
respected Federal appellate judges in the country--nor did any of the 
Senators on the Judiciary Committee make any meaningful argument that 
raised serious concerns about Judge Kavanaugh's jurisprudence. He has 
been a court of appeals judge for over a decade.
  It appeared at that point that the confirmation was a forgone 
conclusion and that indeed Judge Kavanaugh was

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likely to get a substantially bipartisan confirmation. Then, on the eve 
of the vote, it was leaked in the press that there were allegations of 
sexual misconduct and sexual assault. Those allegations sadly had been 
in the possession of the ranking Democratic member of the committee 
since July 30 in the form of a written letter that had been submitted 
by Dr. Ford on July 30 detailing the allegations. The allegations were 
serious. The allegations deserved to be treated with respect.
  In that letter, Dr. Ford requested to stay confidential. She did not 
want her name thrust into the national news. The Judiciary Committee 
has a process for handling allegations. As nominations go forward, 
there are all sorts of allegations that are raised, and the ordinary 
process would be for the ranking member to refer that letter to the 
full committee, to the chairman, refer it to the FBI for an 
investigation, and then the committee has a standing process to engage 
in a confidential hearing--a closed hearing--where the allegations 
raised by Dr. Ford could have been considered without dragging her name 
into the public.
  That would have been the right way to do that. That would have been 
the Senate operating the way it is supposed to operate, but sadly it 
didn't operate that way. Instead, it appears the Democratic Members of 
Congress made the decision to leak the letter to the press and to drag 
Dr. Ford unwillingly into the public square. That did enormous damage 
to Dr. Ford and her family, and it did enormous damage to Judge 
Kavanaugh and his family.
  When that happened, the Judiciary Committee--the Republican members 
of the committee met, and I urged my colleagues, once these allegations 
were made public, that there needed to be a public hearing and that Dr. 
Ford deserved a full and fair opportunity to tell her story; that she 
needed to be treated with respect. That, I am glad to say, is exactly 
what happened.
  I also believed Judge Kavanaugh deserved a full and fair opportunity 
to defend himself and that he, too, should be treated with respect. 
That, sadly, is not what happened. The hearing we had last week 
featured one Democratic member of the committee after another dragging 
Judge Kavanaugh and his family through the mud, raising smear after 
smear after smear--not just the allegations that Dr. Ford had raised 
but other, more farfetched and in some cases absurd allegations. 
Apparently, the threshold for dragging a man's character and 
besmirching his family in Washington is nonexistent.
  At that Thursday hearing, we heard powerful testimony from two 
witnesses--Dr. Ford and Judge Kavanaugh. It was clear that both were 
hurting. It was clear that both had been done enormous damage by the 
politicized way in which Democratic Members of this body launched these 
allegations in the media. But even though we were seeing political 
games, that didn't relieve any Members of this body from the solemn 
obligation we have to advise and consent, the obligation we have to 
have a fair process, to consider the allegations, and to make the best 
judgment we can.
  After two witnesses presented powerful testimony, it became clear 
that their testimony was directly contradictory, so we were called to 
assess the evidence before us. Typically in a court of law, when you 
have conflicting testimony, the way a court of law will assess that is 
to look to other corroborating evidence--what other evidence is there 
that indicates whether particular allegations are true.

  In this instance, Dr. Ford had identified three fact witnesses--three 
named fact witnesses--all of whom gave statements to the Judiciary 
Committee under penalty of perjury. All three of the named fact 
witnesses--not only did they not corroborate the allegations, but they 
affirmatively refuted the allegations. They did so on penalty of 
perjury, meaning if they were lying, they could face up to 5 years in 
prison.
  For me, the fact that all of the corroborating evidence contradicted 
the allegations and the fact that Judge Kavanaugh has a many-decades-
long record as a distinguished public servant with no allegations 
whatsoever prior to the eleventh-hour political allegations that were 
launched by the Democrats--the balance of that, I believe, leads a fair 
decision maker to make the decision that I have made and that this body 
is preparing to make, which is to confirm Judge Kavanaugh.
  Even so, at the insistence of a number of Senators, the Judiciary 
Committee went further: Last week, it asked the FBI to conduct a 
supplemental background investigation, investigate these allegations. 
The instructions to the FBI were to investigate all current, credible 
allegations.
  The FBI did 10 interviews. I flew back to DC from Texas last night. 
At 10 o'clock last night, I came to the Capitol and in a classified 
setting read all 10 of those 302s--the reports the FBI agents prepare 
coming out of those interviews. Having read every single one of those 
reports, not a one of them provides additional corroborating evidence 
for Dr. Ford's allegations. Indeed, the key fact witnesses who had 
previously given statements--unsurprisingly, their statements are very 
much the same. They are more detailed, and they are more extensive 
because the FBI agents questioned them at greater length, but at the 
end of the day, all three named fact witnesses still continue to refute 
the allegations. That means that this body, if we are to be fair and 
impartial, I believe, should confirm Judge Kavanaugh.
  That does not mean, as some have seen in this deeply politicized time 
in our country, that allegations of sexual assault should not be taken 
seriously--to the contrary. The fact that we had an extensive public 
hearing to hear those allegations, to treat Dr. Ford with the utmost 
respect, that the FBI investigated those allegations, sought out the 
fact witnesses, looked for corroborating evidence--all of that 
demonstrates the seriousness with which those charges should be taken.
  Sexual assault is a growing problem in our Nation. It is a pervasive 
problem in our Nation. The #MeToo movement--we have seen powerful men 
in Hollywood, powerful men in journalism, powerful men in politics, and 
powerful men in business abusing their position of power and harassing 
or assaulting women. That is unacceptable.
  I am glad to have worked with my colleagues on both sides of the 
aisle in passing legislation through this body ensuring that there are 
tough standards and that we end the process of secret taxpayer 
settlements if a Member of Congress is guilty of harassment or assault. 
We should have no tolerance for that sort of misconduct.
  So anyone at home who is watching these proceedings, it would be a 
mistake to take the politicized charge of Democrats who wanted to 
defeat Judge Kavanaugh before these charges came along--virtually every 
Democrat who is voting no was going to vote no before any allegation 
had been made. Indeed, a great many of the Democratic Senators 
announced their opposition to Judge Kavanaugh within minutes or hours 
of his being named. Every Democratic member of the Judiciary Committee 
announced their opposition to Judge Kavanaugh before the opening 
minutes of the confirmation hearing, before hearing a word Judge 
Kavanaugh had to say.
  The circus we saw last week was a whole lot of political theater. It 
featured some Democratic Senators, I believe, vying for the 2020 
Presidential nomination and seeing who could be more extreme and put on 
a bigger spectacle. But the American people expect this body to be 
fair. The American people expect this body to respect the law and the 
rule of law. We have been through a process that I believe has been 
fair, has heard out these claims.
  It is my hope that, coming out of this, the anger and rage that have 
been stoked dissipates. It is my hope that Members on both sides of 
this aisle and, more importantly, Americans on both sides of the 
political aisle across the country can remember who we are, can 
remember how to disagree, to disagree passionately. We can have 
passionate arguments about whether taxes should be higher or lower. We 
can have passionate arguments about immigration policy or any other 
policy matter. But I hope that we can remember how to disagree without 
being disagreeable, to disagree while being civil, to disagree while 
respecting each other, while respecting each other's humanity.
  It would have been wrong to vilify and demonize Dr. Ford, and I am 
glad the Judiciary Committee did not go down that road, but it is 
equally wrong

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for Democratic Senators to demonize and vilify Judge Kavanaugh based on 
a lone accusation without corroborating evidence. That is not fair, and 
that is not right. It is empty politics. And if we continue down this 
politics of personal destruction, we are going to find fewer and fewer 
people willing to step forward and serve, fewer and fewer people 
willing to serve on the Federal judiciary, willing to serve in the 
Cabinet.
  There was a time when this body was called the world's greatest 
deliberative body. That was a long time ago, but I do think it is 
possible for us to get back to that, for us to keep disagreements 
focused on substance and issues and remember the fundamental humanity 
even of those who disagree with us.
  The American people--certainly the people of Texas--I think a great 
many were horrified by what they saw last week. Some in the media have 
characterized that women should necessarily oppose Judge Kavanaugh's 
confirmation because they are women. I don't think that is right--that 
is certainly not true from the women I have heard from the State of 
Texas--because women, like men, want the Constitution followed 
faithfully, want the Bill of Rights protected, and want our fundamental 
liberties upheld. Women, like men, want a system of rule of law and a 
presumption of innocence that is fair. Yes, if there is serious, 
credible evidence of sexual assault, it should be dealt with seriously. 
But women and men are mothers and fathers, are husbands and wives, are 
sons and daughters, and brothers and sisters. Every parent of sons 
should want a system where due process is protected and where one lone 
and uncorroborated allegation is not enough to end the career and 
reputation of their son. And every parent of daughters--and I am the 
parent of two daughters--should want a regime where your daughters are 
protected and their lives can't be ruined with an uncorroborated 
allegation either. But if, God forbid, they face assault or harassment, 
there is a system of accountability, and the wrongdoers are held 
accountable.
  We want a fair system. We want a just system. We want a system that 
recognizes the rule of law. There are many countries that are ruled by 
mob, ruled by accusation, and ruled by insinuation. But we need a 
process. In this case, we have gone through a process that was designed 
to be fair. And given the evidence, the right decision, I believe, is 
the decision this body will make tomorrow to confirm Judge Kavanaugh as 
Justice Kavanaugh, the newest Associate Justice on the U.S. Supreme 
Court.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Ms. KLOBUCHAR. Mr. President, I come to the floor today to speak on 
the nomination of Judge Brett Kavanaugh to serve as an Associate 
Justice on the U.S. Supreme Court. As a member of the Senate Judiciary 
Committee, I said on the first day that Judge Kavanaugh appeared before 
the Senate that this proceeding was not normal. On its face, it looked 
like a normal confirmation hearing. The family was there. He was 
sitting in the chair with the table in front of him, ready to address 
the committee. The cameras were on. The Senators were all seated, 
prepared to ask questions. All of it looked normal, but nothing about 
this confirmation process has been normal.
  These hearings began at a time when we had access to only a tiny 
fraction of the documents from Judge Kavanaugh's record. In fact, the 
night before the proceedings started, we got a document dump of 42,000 
pages. Even less of the information--the 3 years of his time as a Staff 
Secretary in the White House--has been available to the American people 
or to us. That is still true today.
  These hearings were about a nominee, in the end, who was handpicked 
by a President--a nominee who had good credentials. There is absolutely 
no doubt about that. There are many nominees--potential nominees--who 
have good credentials. In this case, this particular person was picked 
at a time in our history with perhaps the most expansive view of 
Presidential power possible--a nominee who has actually written in an 
opinion that a President should be able to declare laws 
unconstitutional.
  These views go beyond the mainstream, and this confirmation process 
has only gone farther astray. With what happened during the last 2 
weeks and in light of Dr. Ford's compelling testimony, it was deeply 
troubling. I will talk about this at length.
  I want to begin where I first started--what we know about Judge 
Kavanaugh's record and what it suggests about the kind of Justice he 
would be. In the last decades, the Supreme Court of the United States 
has decided whom you can marry, where you can go to school, who can 
vote, and for people like my grandpa, who worked 1,500 feet underground 
in the mines in Ely, MN, his entire life, the Supreme Court has decided 
how safe your workplace is.
  The next Supreme Court Justice will make decisions that affect people 
across the country--their lives--forever. The next Supreme Court 
Justice will rule on cases that could determine whether health insurers 
can deny coverage to people who are sick or who have preexisting 
conditions and whether women's rights are protected. The next Supreme 
Court Justice will be in a position to serve as a check and balance on 
the other branches of government. That person must be someone who is 
fair and impartial and who demonstrates a commitment to the truth 
without consideration of politics or partisanship.
  It has been our responsibility--every Senator in this Chamber--to 
determine if Judge Kavanaugh would protect the careful balance of power 
among the three coequal branches that our Founders designed. We must 
determine if he would stand up for the rule of law without 
consideration of politics or partisanship, if he believes in the simple 
idea that no one is above the law.
  We knew coming into the hearing that Judge Kavanaugh's views of 
Executive power were among the most expansive we have ever seen and 
that he has been making the case for strong Presidential powers for 
decades. In a 2009 piece in the University of Minnesota Law Review, 
Judge Kavanaugh wrote that a sitting President should not be the 
subject of an investigation or even be required to answer questions as 
part of a special counsel's investigation. In that article, he argued, 
it is not a good use of the President's time to prepare for an 
interview or questioning by special counsel. He made no exception for 
an investigation addressing threats to our national security, even when 
a foreign power has somehow interfered in our country's affairs.
  It is not hard to see why these views are relevant during this 
critical constitutional moment. There is an extensive, ongoing 
investigation by a special counsel, and the President's private lawyer 
and campaign chairman have been found guilty of multiple Federal 
crimes.
  The man appointed as special counsel--a man who has served with 
distinction under Presidents from both parties--has been under siege, 
as well as the Attorney General and the Deputy Attorney General.
  In the same article that Judge Kavanaugh wrote, he made the point 
that if a President did something ``dastardly,'' then Congress could 
act, arguing that a criminal investigation should be put on hold until 
the end of the President's term. When I asked him what ``dastardly'' 
means, he could not answer, even when I asked about a President. Who 
knows what he or she could do--commit murder, jeopardize our national 
security, obstruct an investigation, or engage in white collar crime? I 
still didn't get an answer about what ``dastardly'' means.
  The judge's expansive view of Presidential power is part of a much 
broader pattern of writing and commentary. More than a decade before, 
in a 1998 piece in the Georgetown Law Journal, Judge Kavanaugh wrote 
that the President should be able to remove a special counsel at will.
  This is the opposite direction from what we did in the Judiciary 
Committee when we passed bipartisan legislation earlier this year on a 
14-to-7 vote to enact additional protections for the special counsel 
and all future special counsels.
  At a 2016 event at the American Enterprise Institute, the judge was 
animated and almost gleeful when he said he would ``put the final 
nail'' in Morrison v. Olson, a Supreme Court decision that upheld the 
now-expired independent counsel statute. It is hard to imagine that he 
would respect a 30-

[[Page S6598]]

year-old precedent and protect the integrity of a special counsel 
investigation in light of that statement.

  At a roundtable discussion in 1999, he criticized the Supreme Court's 
unanimous ruling in U.S. v. Nixon that compelled President Nixon to 
comply with the subpoena to produce tapes and documents written by a 
Minnesotan, Justice Warren Berger.
  When this came up in the hearing, Judge Kavanaugh repeatedly 
characterized the case as one of the greatest moments in our country's 
judicial history, but he refused to answer, when asked, the question of 
whether that case was correctly decided.
  These are incredible statements with implications that are clear when 
you think about what is going on in our country today. The dedicated 
public servants who work in our Justice Department--including the 
Attorney General, the Deputy Attorney General, the special counsel, and 
the FBI--have been subjected to repeated threats and have had their 
work politicized and their motives questioned.
  I asked Judge Kavanaugh if these statements reflect his views today, 
but he said only that he wasn't making constitutional arguments. He did 
not dispute that he believes, as a matter of policy, that these are the 
types of broad powers a President should be able to exercise. He said 
that he was thinking of ways to make the Presidency more effective.
  These are not just abstract legal concepts; they are ideas that could 
directly impact the future of our democracy, as well as the lives of 
Americans.
  There are other pieces of this puzzle that make clear what a broad 
view of Executive power Judge Kavanaugh has. To cite one example, his 
opinion in Seven-Sky v. Holder discusses when a President can decline 
to enforce a law, even if a court has upheld it as constitutional. The 
judge wrote that ``the President may decline to enforce a statute . . . 
when the President deems the statute unconstitutional.''
  What does that mean? That means the President could decide he could 
just hold a statute unconstitutional even if a court has held it is, in 
fact, constitutional. That is what that means. It is not a law review 
writing. It is not something written when he was in college or in law 
school. It is actually something he wrote in a case.
  What would that mean for women's health? What would that mean at a 
time when the administration is challenging protections for people who 
are sick or have preexisting conditions? I asked him if he believed the 
President could declare these protections unconstitutional, even if a 
court upheld them. This isn't a hypothetical example. The 
administration is now arguing in a Texas district court that the 
Affordable Care Act's preexisting conditions protection is 
unconstitutional.
  The judge refused to answer whether a President could simply ignore a 
law, even one upheld by the courts. He didn't answer when Senator 
Durbin asked it, when Senator Blumenthal asked it, and when Senator 
Harris posed the same question.
  The days of the divine rights of Kings ended with the Magna Carta in 
1215. Centuries later, in the wake of the American Revolution, a check 
on the executive was a major foundation of our country's Constitution, 
for it was James Madison who wrote in Federalist 47: ``The accumulation 
of all powers legislative, executive, and judiciary in the same hands . 
. . may justly be pronounced the very definition of tyranny.''
  There is more. None of the judge's colleagues joined the section of 
his opinion in Aiken County outlining his views on when Presidents can 
ignore the law, and one who was an appointee of President George H.W. 
Bush stated explicitly that reaching that issue was unnecessary to 
decide the case.
  Judge Kavanaugh has made very clear over the years that he has an 
incredibly broad view of the types of protections that should be 
extended to a sitting President. Without further answers from him 
during the hearing, we are left only with his writings and his previous 
statements. These writings say that a sitting President should not have 
to be subject to a criminal investigation; that a sitting President 
should be able to remove a special counsel; that a sitting President 
should not have to agree to an interview with the special counsel; and 
that a sitting President has the legal authority to ignore the law.
  At this time in our history, we need a Justice who is independent and 
who will serve as a check on the other branches, which is what our 
Founding Fathers set up--not a judge who would allow the President to 
avoid accountability or who believes the President's views alone should 
carry the day.
  Despite many opportunities, Judge Kavanaugh did not convince me he 
would be an independent jurist who would maintain the fundamental idea 
we all learned in grade school. What is it? No one is above the law.
  Another concern I have is what Judge Kavanaugh's views would mean for 
American consumers. In one opinion that was later overturned by the 
entire DC Circuit, Judge Kavanaugh argued that the Consumer Financial 
Protection Bureau was unconstitutional, calling it a threat to 
individual liberty. He said this about the Consumer Financial 
Protection Bureau.
  The Bureau was founded in the wake, as you know, of the financial 
crisis and has now helped more than 30 million consumers obtain more 
than $12 billion in relief. The Bureau helps protect consumers as they 
deal with financial institutions that offer credit cards, loans, and 
mortgages.
  What did the judge say? He found it unconstitutional. Thankfully, the 
full DC Circuit came to the opposite conclusion--all the other judges. 
The majority recognized that millions of families were devastated by 
the financial crisis, with about 4 million families losing their homes 
in foreclosure and even more slipping seriously behind on their 
mortgages.
  Judges appointed by Presidents from both parties came to the opposite 
conclusion of the nominee who is before us today, and the majority on 
that court concluded that the Bureau should stay in place, as Congress 
intended.
  While the DC Circuit made the right decision in that case, what 
struck me was just how far the judge had gone in his opinion. The judge 
was not just talking about the Consumer Financial Protection Bureau in 
that case. His opinion referred to independent agencies as a ``headless 
fourth branch''--that is a quote--of government, and it could threaten 
other agencies, like the Federal Trade Commission, which protects 
consumers from scams and anti-competitive mergers, or the agencies that 
helped to stabilize our economy after the financial crisis, like the 
Federal Reserve and the Securities and Exchange Commission or the 
Social Security Administration, which distributes benefits to more than 
60 million elderly and disabled Americans and has had a single 
director, just like the Consumer Financial Protection Bureau, for 
decades, since 1994.
  Judge Kavanaugh has called independent agencies a threat to 
individual liberty not just once--no, more than once. In that same 
Minnesota Law Review article I mentioned that outlined his expansive 
view of Executive power, the judge criticized the 80-year-old precedent 
that upheld the constitutionality of our independent agencies.
  I asked Judge Kavanaugh about his conclusion that the Bureau was 
unconstitutional. He did not dispute this conclusion, but he did say 
his opinion simply called for a change to the law so the Director of 
the Bureau could be fired by the President at will. I found that answer 
problematic.
  When Congress drafted the law that created the Bureau, it made the 
choice--we made the choice right here in this Chamber--to give the 
Director a 5-year term to provide some independence from politics. This 
was a choice that we made in this Chamber. Not everyone agreed with it, 
but by majority vote it passed. It passed in the Senate, and it passed 
in the House. We made that decision.
  During our discussion on the judge's expansive views of Executive 
power at the hearing, he kept telling me that the scope of Presidential 
authority was a matter of policy that Congress should decide. He 
repeated this answer often to me and to others. When it comes to 
Presidential power, he said that Congress should decide.
  Look at what happened here when it comes to protecting consumers. In 
this case, Congress did decide; we actually passed a law. We said we 
wanted this independent Director to have a 5-year term over this very 
important agency that returned $12 billion to consumers

[[Page S6599]]

who have been victims of scams and mortgage fraud. It was Congress's 
decision. Did that matter to the judge in this dissent that he wrote? 
It did not.
  It seems to me, just looking at all these opinions, that the judge's 
record is this. When he likes what Congress decides, he says: Hey, 
Congress has the final say. When he doesn't like what Congress decides, 
he then thinks the judge should make decision.
  What does that mean? In this case, he would have rewritten the 
consumer protection law over the wishes of Congress. What would that 
mean for the lives of Americans? After what this country has been 
through, after families who worked hard and tried to save for the 
future lost billions of dollars, he ruled that the agency that is 
designed to protect them was unconstitutional, and it is not an 
isolated example.
  In another case, he argued that the net neutrality rules were 
unconstitutional. Those were the guidelines developed by the FCC to 
help consumers and small businesses have an even playing field when it 
came to the internet. Those net neutrality protections would have 
prevented internet service providers from blocking, slowing, and 
prioritizing web traffic. One again, the full DC Circuit--those other 
judges--decided against Judge Kavanaugh, and these key consumer 
protections were upheld by a panel of judges appointed by Presidents of 
both parties.
  The question I always come back to is this: What will this mean to 
Americans? Here is the kicker: The outcome that the judge went out of 
his way to reach in the net neutrality case protects the First 
Amendment rights of corporations at the expense of the First Amendment 
rights of individuals. That is why that case is such a problem, but 
these aren't the only reasons why there is great concern for consumers. 
In announcing the judges's nomination, the White House touted the fact 
that he has overruled Federal agency actions 75 times. The White House 
also said in a document that it sent out that he led the efforts to 
rein in executive agencies.
  When I asked him about this in his hearing, he said that he had ruled 
both for and against executive agencies, but his record makes clear 
that he has ruled against them in the overwhelming majority of cases.
  Judge Kavanaugh's record suggests that health and safety standards 
and environmental standards would be at risk if he is confirmed to the 
Supreme Court. He has called the 34-year-old precedent, a case called 
Chevron--the same precedent that ensures these protections stay on the 
books--an atextual invention of courts and a ``judicially orchestrated 
shift of power.'' That is what he said.
  To make it clear, this is not just one case that happens to be 
sitting out there in the old dusty law books. No, it is the most cited 
case in administrative law. It has been referenced in more than 15,000 
legal decisions, and it has been championed by scholars and jurists 
across the ideological spectrum, including Justice Scalia. That is that 
case.
  What would happen if we didn't have this case? Well, I guess we would 
have the judge making decisions instead of agencies with technical 
expertise. A judge with no scientific background should decide the best 
reading of dictating how pollution is acceptable in our air, lakes, or 
rivers rather than scientists.
  These decisions have real implications for people across the country. 
These are the rules that protect our drinking water and keep our 
workplaces safe. In the end, it wasn't a Federal judge who was helped 
by the DC Circuit's reliance on Chevron in interpreting a Labor 
Department rule. It was an hourly Minnesota grocery store worker who 
got to keep his hard-earned pension.
  As a granddaughter of a miner, I can tell you that it wasn't a CEO or 
a corporate board chair whose life was saved by mining safety rules. It 
was the Minnesota iron ore workers who, like my grandpa, would go down 
in a cage, 1,500 feet underground, every single day with their black 
lunch bucket. That is what my grandpa did every day. All my grandpa, 
who never got to even graduate from high school, wanted was to send my 
dad and his brother to college. My dad ended up as the first kid in his 
family to graduate from college--a community college, a 2-year 
community college. From there he went to the University of Minnesota 
and got his 4-year degree--all that because my grandpa went down in 
that mining cage and saved money in a coffee can in his basement to 
send my dad to college.
  Everyone would gather at the mines and run over there every time the 
sirens went off because it meant someone died or someone was hurt. My 
dad still remembers the coffins in St. Anthony's Church lined up in the 
front. That is what workplace safety rules have changed.
  It was the worker protections, coupled with the ability to organize a 
union, that finally made those miners' jobs safer. Americans rely on 
these protections to keep them healthy and safe, and we can't have a 
Supreme Court Justice who would throw those protections in doubt.
  The final point I would make about the legal record is what would 
happen to our antitrust laws. In recent years, the Supreme Court has 
made it harder and harder to enforce the Nation's antitrust laws when 
you have big consolidations and market dominance. There are cases 
called Trinko, Twombly, Leegin, and Ohio v. American Express. There has 
been a whole series of them.
  Why does that matter to us? It matters. It couldn't be happening at a 
more troubling time. We are seeing this wave of industry mergers. 
Americans know it in their own life. Companies are getting bigger and 
bigger and bigger. We have now two companies that have surpassed $1 
trillion. Annual merger filings with our agencies here in Washington 
have increased by more than 50 percent in just the last 5 years.
  So we already have a Court that is going conservative right when I 
think Americans need this protection, but, instead, we have a judge 
that is before us today that has written two major cases in this area. 
Both of them were even more conservative than where the Court was. Both 
of them made it even harder for mergers to be checked by the Federal 
Trade Commission--even by a Federal Trade Commission that was run by 
the Republicans. They thought the merger was troubling in one case. 
They brought it to court. This judge went the opposite way.
  Our exchange in the hearing did not convince me that the American 
people and all those in favor of strong antitrust enforcement that 
promotes competition and protects consumers should not be concerned.
  I think back to my favorite game growing up--Monopoly. The basic 
premise of ``the more you own, the more you made'' has always been true 
in American capitalism. If you monopolized the board by buying up 
multiple properties in the same color or all those railroads, you could 
take your opponents out of the game.
  What does that mean today? Well, the failed merger between Norfolk 
Southern Railway and Canadian Pacific, something I took on only 
immediately when it was announced--we defeated that. But even without 
that merger, where are we today? Ninety percent of the freight rail 
traffic is handled by only four railroads. That is the same number of 
railroads on the Monopoly board. I don't think that is a coincidence.
  So as we look at his rulings in this area, we realize this isn't just 
a game. No, this is our economy, and we want judges who are a check and 
balance, just as the Founders wanted. The Founders cared a lot about 
monopoly, actually, and they wanted a check and balance in our courts. 
They set up an independent judiciary.
  The last point I want to focus on is Judge Kavanaugh's record and his 
views on campaign finance.
  I requested a number of these campaign finance documents to become 
public because I thought they raised serious concerns about Judge 
Kavanaugh's views in this area of law. I actually got those documents 
public, and it is one of the reasons that a number of my colleagues who 
are opposed to the judge have been able to talk about those records 
right here on the floor and the public has been able to see them.
  In one email from March of 2002, he discussed limits on contributions 
to candidates saying--these are his words: ``And I have heard very few 
people say that the limits on contributions to candidates are 
unconstitutional, although I for one tend to think those

[[Page S6600]]

limits have some constitutional problems.'' That is a big deal because 
we have very few campaign finance laws left that allow us to be 
protected from dark money and unlimited money coming into companies.
  He also described in another email his ``1A''--that is the First 
Amendment--views as ``pure.'' This is very concerning when it comes to 
campaign finance. I have serious doubts, based on his record, as to 
whether he thinks that Congress has the authority to pass any campaign 
finance reform and take action to rein in the flood of dark money that 
has drowned out the voices of ordinary citizens.
  What does that mean? Well, when the Court stripped away the rules 
that opened that door to unlimited super-PAC spending--and that is what 
we have right now--it wasn't the campaign financiers or the ad men who 
were hurt. No, it was the grandma in Lanesboro, MN, who thought it 
mattered when she sent in $10 to support her Senator. That is what we 
are dealing with, and if we get even narrower or get rid of all the 
limits on campaign finance, it is only going to get worse.
  The American people would not have even known about Judge Kavanaugh's 
extreme views on campaign finance if I had not sought to have those 
documents made public. That is because there are still 186,000 pages of 
documents that have been produced to the Judiciary Committee, but they 
have not been made available to the American people.
  Let me put it another way. Even now, only about 7 percent of Judge 
Kavanaugh's White House record has been produced to the Judiciary 
Committee, and even less--that is about 4 percent--is available to all 
of you, to the public.
  On top of that, we are missing 3 years of documents from his time as 
Staff Secretary. So we have no records to review from that part of 
Judge Kavanaugh's previous work in the White House.
  We also don't have 102,000 pages of documents that the White House 
has withheld under a claim of constitutional privilege, even though 
executive privilege has never been used to block the release of 
Presidential records to the Senate during a Supreme Court nomination 
under Presidents from both parties.
  As a former prosecutor, I know that no lawyer goes to court without 
reviewing the evidence and the record, and a good judge would not 
decide a case with only 7 percent of the key documents.
  In fact, as I mentioned, we received 42,000 documents the night 
before. We could not even look at them when we were starting to ask him 
questions because we had only gotten them the night before.
  So I asked him if he thought that a judge would grant a continuance 
in a situation like that when one party dumped 42,000 pages of 
documents on the other the night before trial. I didn't get much of an 
answer.
  We have already learned that the information in documents from Judge 
Kavanaugh's time in the White House is relevant to our consideration of 
his nomination. We should have those documents before we have this 
vote, but we don't.

  Having full information about the judge's record brings me to the 
compelling testimony of Dr. Ford. Since Dr. Ford came forward, we have 
all thought a lot about our justice system. Before I got to the Senate, 
I was the Hennepin County Attorney in Minnesota. In that job, we used 
to say that we were ministers of justice and that that meant that we 
would work to convict the guilty but also to protect the innocent.
  I hope my colleagues think about this question tomorrow: Are we truly 
protecting the innocent in how we are moving forward? What have we 
done?
  A critical part of carrying out justice is having a fair process. 
That is something that Judge Kavanaugh himself has repeatedly and 
publicly said he wants.
  I appreciate Dr. Ford's willingness to come before the Judiciary 
Committee last week, but it was unfortunate that she had to do it 
before the White House had asked for the FBI to reopen its background 
investigation and follow up on what she had said.
  When I think of my work, we always would have those investigations 
and that information before any kind of a hearing. Back in Minnesota, 
our office handled all the judicial matters in our county from the 
juvenile area. In fact, we had about 12,000 cases every year, as well 
as all adult felonies. We investigated reports like Dr. Ford's. That 
job gave me a window into how these types of cases hurt women and 
impact everyone.
  I would always tell those stories of those coming before us. I would 
tell them: You know what. This is going to be hard. You have to tell 
your story to a jury box of strangers, but you are doing it for 
justice. You are doing it for the right reason.
  As for Dr. Ford, she had to tell her story to a nation. It was a 
moment. So many people in our country were watching her. I don't think 
people thought they were going to believe her when they first went in 
there and they first turned on their TVs, but then they watched her. 
They watched her grace and her dignity.
  But, then, sadly, in the afternoon, for my colleagues on the other 
side, we saw a lot of anger and chest beating. I believe the strategy 
was to distract and deflect from the moving and incredible testimony of 
someone who told her story to the Nation.
  This was a woman with no political background, who made an attempt to 
call the front office of her congressional Representative. That is all 
she did. All this stuff about her being part of some kind of smear 
campaign--she did it even before he was a nominee. She had read that he 
was one of the people under consideration, and she thought she should 
warn people.
  Now, she wanted her name confidential. She explained all that during 
the hearing. She simply called the front desk of her congressional 
Representative.
  This wasn't the first time that the Senate had confronted this type 
of situation. When Anita Hill came forward with her allegations against 
then-Judge Clarence Thomas, President George H.W. Bush immediately 
requested that the FBI reopen its background investigation.
  Dr. Ford was another person who made a credible claim. Chairman 
Grassley actually thanked her for her bravery in coming forward last 
week. Several of my Republican colleagues talked about how much they 
respected her.
  Well, I said: You know, if you really want to respect her and you 
really want to be brave, then, you at least have to give her the 
modicum of respect by following up on her allegations, and that should 
have been done the minute that letter went public.
  I found out about it, by the way, on the very same day that my 
Republican colleagues found out about it, and that was just a few weeks 
ago. I have heard a lot of complaints about that, and I am not going to 
get into that issue except to say one thing: The justice system is 
messy. Things come out at the very last minute sometimes. Evidence 
comes out before trial, but the issue is, When that happens, what do 
you do with it? What do you do with it when you are in a position of 
power? Do you just sweep it under the rug, as has happened too many 
times in this Chamber, in this building? No, you give them a chance to 
make their case, but also to give them that underlying investigation, 
and you reopen a background check--not a criminal background check, 
simply a background check like we do for any other high-level 
nomination in the Senate.
  As I told my colleagues last week, if you want to make a political 
speech about keeping nominees off the floor, here is exhibit A for you: 
Merrick Garland, 10 months. For 10 months he was kept off the floor. 
Yet people have acted in a sanctimonious way that this was some 
cataclysmic event--to simply go back in and do an FBI investigation.
  Dr. Ford's testimony was powerful. I asked her not about what she 
remembers about that night but what she couldn't forget. Here is what 
she said:

       The stairwell. The living room. The bedroom. The bed on the 
     right side of the room. . . . The bathroom in close 
     proximity. The laughter, the uproarious laughter.

  We also heard from Dr. Ford about how she came forward because she 
felt she had a civic duty, just like we have a civic duty to look at 
the record that I just laid out for you in the last hour. That is our 
civic duty. That is why she came forward.

[[Page S6601]]

  She talked about how she brought this up in therapy 6 years before 
and how she had given her husband the name of Judge Kavanaugh. This is 
before he was famous. This is before he was up for the Supreme Court.
  As a former prosecutor, I understand the critical role that law 
enforcement has in gathering the information necessary to evaluate 
reports like this one. I don't like living in an evidence-free zone, 
and while I am glad the White House reopened the background check and 
at least went in and talked to some of the witnesses, if you go down 
there--which you can't do, but I could do and the other Senators could 
do--you realize, and you can see this from the public reports, that a 
lot of people weren't interviewed. For a lot of the names from Dr. Ford 
and one of the other victims involved in some allegations, Ms. Ramirez, 
they were not able to have those witnesses interviewed. That is what 
you see when you are down there. So this was not a fair process that 
Judge Kavanaugh said he wanted and that Dr. Ford wanted.

  What we heard from the judge later in the day could not have been a 
sharper contrast from what we heard from Dr. Ford in the morning. She 
told her story, and it was a story that so many times in our Nation's 
history has been, as I said, swept under the rug because for so long, 
people have been told that what happens in a house should never end up 
in a courthouse.
  Now what we can say to Dr. Ford is, well, this may not end up the way 
you wanted it, and it may not feel worth it to have come forward to 
have your life turned upside down. But you know what--there is one 
reason it was worth it, and that is because the American people learned 
something and they are speaking out because the times, they are a 
changing.
  To conclude, I want to return to some of the thoughts on what this 
nomination means at this uncertain moment in our history. This 
nomination comes before us at a time when we are witnessing seismic 
shifts in our democracy. Foundational elements of our government, 
including the rule of law, have been challenged and undermined. Today 
our democracy faces threats that would have seemed unbelievable not 
long ago.
  A man who was appointed special counsel in the investigation that is 
going on right now involving a foreign country interfering in our 
democracy--a man who served with distinction under Presidents from both 
parties--is under siege. Dedicated persons in the Justice Department 
are under siege. A third branch of government--our courts and our 
individual judges--has been under assault, not by a solitary 
disappointed litigant but by the President of the United States.
  Our democracy is on trial. It is our duty to carry on the American 
constitutional tradition that John Adams stood up for centuries ago, 
and that is to be ``a government of laws and not of men.''
  The next Supreme Court Justice should serve as a check on the other 
branches of government, someone who is fairminded and independent, who 
will uphold the motto on the Supreme Court building to help all 
Americans achieve ``equal justice under law.''
  We have all thought a lot about the separation of powers in the last 
few weeks. All the attacks on the rule of law and our justice system 
have made me--and, I would guess, some of my other colleagues--pause 
and think many times about why we decided to come to the Senate in the 
first place, and in my case, why I decided to go into law in the first 
place. So I went back and I found an essay that I had written back in 
high school.
  I can tell you that not many girls in my high school class said they 
dreamed of being a lawyer. We had no lawyers in our family, and both of 
my parents were the first in their families to go to college. But 
somehow, when I was in high school, my dad convinced me to spend a 
morning sitting in a courtroom and watching a State court district 
judge handle a routine calendar of criminal cases. The judge took 
pleas, listened to arguments, and handed out misdemeanor sentences. It 
was nothing glamorous--and nothing glamorous like the judge before us 
is being nominated to do--but it was important just the same.
  I realized that morning that behind each and every case, no matter 
how small, there was a story, a person. Each and every decision that 
judge made that day affected someone's life, and I noticed how he had 
to make gut decisions and try his best to take account of what his 
decisions would mean.
  There is something I said back then in that essay that I still 
believe today, and that is this: To be part of an imperfect system, to 
have a chance to better that system, was and is a cause worth fighting 
for, a job worth doing.
  Our government is far from perfect, and so is our legal system, and 
so was this hearing, but we are at a crossroads in our Nation's history 
where we must make a choice: Are we going to dedicate ourselves to 
improving the justice system or not? Is this nominee going to 
administer the law with equal justice as it applies to all citizens 
regardless of whether they live in a poor neighborhood or a rich one, 
in a small house or the White House?
  Many Americans are troubled today. When they watched the hearing, 
they were given some hope. They wanted to be fair, and they wanted due 
process, and I get that, but they also saw the blind partisanship of 
Washington and its crushing weight.
  For many of us, this nomination process does not look like it is 
going to end the way we want it to, but Dr. Ford opened a window on 
sexual assault that is never going to be closed. Anyone who works here 
knows they have heard stories, and people tell stories they had never 
told before. Then there are those who want to see change in government. 
Well, they opened a door that will never close, and we welcome them. We 
need some new people around here.
  So I am going to end with a quote from a song I listened to this 
morning, and it is a Minnesotan--not Prince; it is Bob Dylan. He was 
born in Duluth, and he grew up very close to where my dad grew up on 
the Iron Range of Minnesota. These are the last words of his song:

       As the present now will later be past, the order is rapidly 
     fading, and the first one now will later be last, for the 
     times they are a changing.

  And they are changing. People's reactions to what happened this week 
and their focus on government and their focus on making things better--
that is changing.
  As I said last Friday at the committee hearing, the Constitution does 
not say ``we the ruling party''; the Constitution says ``We the 
People.'' And last week, the American people responded like never 
before. They stood up for something real, for something larger than 
themselves, for the hope of tomorrow. So that is how we the people 
prevail, because the times, they are a changing.
  Thank you, Mr. President.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Cassidy). The Senator from Alabama.
  Mr. JONES. Mr. President, first of all, let me thank my colleague and 
friend, Senator Klobuchar, for those sober words. As former 
prosecutors, we share a lot of the same bonds and knowledge, and we 
come to this in different ways sometimes than our colleagues. She 
expressed so many sentiments that I am going to try--and not as 
eloquently as she--to express today. So I say thank you for those 
comments.
  I come to the floor today both as a new Member of this body and as a 
longtime admirer and student of the Senate to offer my perspective on 
the situation in which this distinguished body finds itself today.
  I am deeply disappointed and concerned by the process, the posturing, 
and the partisanship that have degraded what should be one of the most 
serious, deliberate, and thoughtful decisions we in the Senate are 
entrusted to make.
  Over the course of my almost 40-year career as a trial lawyer, I have 
represented just about every kind of client you can imagine, from the 
indigent to the CEO, major corporations and small business owners, 
individuals charged with serious crimes and those charged with petty 
offenses. I have also had the incredible honor of serving in the 
Department of Justice and representing the United States of America. 
Every one of my clients and every one of those who were on the other 
side of the litigation in which I was engaged expected and deserved 
fair, impartial treatment in our courts, and rightly so. But from the 
moment Justice Kennedy

[[Page S6602]]

announced his retirement, the conversation about his replacement seems 
to have rarely been about fairness and impartiality; instead, it has 
been about power and politics.
  This Supreme Court nomination almost immediately turned into a 
divisive political campaign, with millions of dollars being spent to 
sway Senators on both sides of the aisle, including me. In his 
partisan-fueled tirade last week, Judge Kavanaugh lashed out at the so-
called liberal groups who spent so much money attacking his nomination, 
but he never acknowledged and others in this body have never 
acknowledged that conservative groups have spent a like amount of 
money, if not more, promoting Judge Kavanaugh.
  I want to make my position clear today. I think that this kind of 
political campaign for a seat on the Supreme Court of the United 
States--a political campaign run by either political party--should be 
condemned as completely contrary to the independence of the judicial 
branch of our government.
  Throughout this nomination process, I have repeatedly expressed my 
concerns about the way it has been conducted. It was flawed from the 
beginning, and it will be incomplete at the end because of a needless 
rush to a confirmation. From the beginning, I have done my best, the 
best that I know how, in my experience, to exercise my constitutional 
duty--my duty of advice and consent--in a fair and impartial manner, 
putting aside the political considerations that were being thrown at me 
from every angle.
  You know, I have often said in the last few months that it seems that 
for those who supported Judge Kavanaugh's nomination, if I voted to 
oppose, I would be seen as nothing but a puppet for my party. On the 
other hand, for those people who opposed Judge Kavanaugh, if I were to 
vote for Judge Kavanaugh, I would be seen as bending to a political way 
to try to get reelected in a conservative State. Neither of those is 
true.
  My staff and I have dedicated an incredible amount of time almost 
every single day since July 10 to reading Judge Kavanaugh's opinions, 
his speeches, and his articles; reviewing documents at the time he 
worked at the White House--at least those documents we were able to get 
ahold of; watching his Senate hearing testimony and his television 
appearances; meeting with my constituents and advocates; and reading 
statements and emails both in support of and in opposition to Judge 
Kavanaugh. This was all done in a very serious effort to give 
thoughtful and fair consideration to Judge Kavanaugh's nomination 
without regard to party or politics.
  The one thing I did not get a chance to do was to meet with Judge 
Kavanaugh. Judge Kavanaugh and the White House called my office a 
couple of times early on in the process to try to get a meeting with 
me, and I told them at that time or my staff told them that my process 
was to listen and to read, to understand and do my deep dive into his 
record and to know all that I can know about him. As a lawyer, I wanted 
to watch that hearing. I wanted to see what would occur at the hearing 
and how he would present himself, the questions that he answered and 
the questions he avoided, so that when I did meet with him following 
that hearing, it would be meaningful. It would not be a meet-and-greet, 
like so many of us have in this body, but a meaningful meeting.
  As soon as Chairman Grassley called for the hearing shortly after 
Labor Day, as soon as that was called in August, my staff started 
calling the White House to get a meeting. We were told that they would 
still want a meeting, but we continued to get rebuffed. We never got 
that meeting. We continued to call after the hearing, and we continued 
to call at least until the time that Dr. Ford's allegations were made 
public, and at that point, we knew a meeting was probably not likely to 
happen.

  So for all of those detractors who say that I didn't try to get a 
meeting and that I didn't have the time, I did my best to follow the 
process of deliberation that I felt appropriate in my due process to 
make that meeting meaningful, and it never happened, through no fault 
of mine or my staff.
  After all that, we find ourselves in this moment of historical 
significance, where we as a body have an opportunity to send a loud and 
clear message to women and men throughout this country.
  As I previously have said, I believe Dr. Ford made an incredibly 
brave decision to come forward publicly and to testify to the full 
Senate Judiciary Committee. It was hard to do, knowing how she would be 
vilified. As a former prosecutor, I know how hard it is for victims to 
talk about these experiences, particularly in cases of sexual assault.
  I have been moved by the many reports of thousands of women who have 
felt compelled by recent events to reveal similar stories that they 
have buried for many years, some for decades. In the last few weeks, 
women have shared with me intensely painful and personal descriptions 
of assaults, some of whom I have known for a period of time but never 
knew what they were carrying within them.
  Many of these happened so many years ago--high school, college, as 
young professionals. Often, they hadn't told anyone, not even their 
closest friends and loved ones. Their experiences, while different in 
detail, have so many similarities. Their feelings of fear and shame and 
guilt were overwhelming at the time of their encounters. Those emotions 
exert a powerful hold on these women's lives. Even if they go on to 
find professional success and fulfilling relationships, it is still 
buried within them, and they don't speak up because they do not want to 
be known as victims or they don't want others to have to bear their 
pain, knowing that nothing can undo what happened to them.
  In last week's public hearing, I found Dr. Ford to be a compelling 
and credible witness. Yes, there were gaps in her testimony. There 
always are. There are always gaps and lapses of certain memories in 
situations like these. Those who have worked with victims of assault 
know that the most traumatic details are seared into their memories, 
while extraneous facts may fade over time. Reactions of the women, when 
they see their perpetrators, are different, depending on the 
circumstances, but they never forget the pain. They never forget the 
pain of what happened to them, but rather than relive it or face 
condemnation or retribution, they simply keep it to themselves and go 
on day after day after day.
  If you watched our President this past week at his political rallies, 
you can understand exactly why these women are afraid to speak out. I 
am actually appalled at the President's attacks on Dr. Blasey Ford just 
days after he called her a credible witness--just days after so many in 
this body called her a credible and compelling witness. His message was 
simply this: Keep quiet. Nothing happened here. Don't ruin this man's 
life. Let's continue to stoke the political fires surrounding his 
nomination.
  We have heard time and again that victims must be heard--time and 
again. So often have we heard that in the last 2 weeks, that victims 
must be heard, but the message from the President of the United States 
and those who have surrounded him is, yes, let them be heard. Just 
don't listen. Just don't listen to them.
  Unfortunately, that message isn't new. The President used his 
platform to try to intimidate survivors into staying quiet and hiding 
their pain from the world, but I think he is going to find that while 
he is focused on stirring up his political base with misogynistic 
comments, women around this country are rising up, and they are gaining 
their strength. They are finding their foothold. They are finding their 
voices in an effort to expose what for far too long has been swept 
under the carpet.
  Regardless of the vote tomorrow, we cannot and will not ignore where 
we are in this moment of history. This is a movement that will not be 
quieted, nor should it be quieted.
  For Judge Kavanaugh's part, I was very disappointed in his testimony 
last week. If the incident did not happen, then I understand full well 
his frustration and his anger. I get it. Any man would be. It is 
understandable. Both he and Dr. Ford have endured the ugliness of our 
society. But, in my view, he simply went too far by leveling 
unnecessary and inappropriate partisan attacks and accusations, 
demonstrating a temperament that is unbecoming a sitting judge, much 
less a Supreme

[[Page S6603]]

Court nominee. His testimony ran completely counter to the image he 
attempted to portray in his earlier hearing, in all of his interviews 
on television, and in the photo opportunities with the various 
Senators.
  In addition--and this was incredibly important to me because I had 
watched it for some time--in simply refusing to acknowledge the need 
for further investigation, for a further review of his record, as 
Senator Klobuchar discussed a few moments ago, by failing to 
acknowledge the need for further review and investigation into these 
allegations, he demonstrated anything but the independence necessary 
for our judiciary. Instead, he has bowed to the White House and to the 
majority of the Judiciary Committee to plow through this nomination 
process without a full review of his record and without a full, fair, 
and complete investigation into the very serious and credible 
allegations made by Dr. Blasey Ford.

  I am certainly not alone in my views. It is not just people in the 
Democratic Party or Senators on my side of the aisle. At last count, I 
saw that there are some 3,000 law professors, about 40 of which are at 
Yale Law School, from which Judge Kavanaugh graduated. Those law 
professors have called for his nomination to be either withdrawn or 
rejected. Religious organizations, including the editors of the Jesuit 
Review, have done the same. I am told that just this morning, the 
American Bar Association--the gold standard of review for judicial 
nominations--has notified the Judiciary Committee that they are 
reopening their evaluation of Judge Kavanaugh's character and fitness 
based on what they witnessed in the testimony last week. That is a 
significant development that just occurred this morning shortly before 
our vote to proceed.
  Even before the recent serious allegations of sexual assault, I 
called for a pause so that we could get the documents that are needed, 
including those that Chairman Grassley himself had requested. The 
National Archives reported that due to the volume, even producing those 
documents on a rolling basis would not take place until sometime this 
month, in October. Well, it is October now, and although we don't have 
those documents, we have had two hearings and now are scheduled to vote 
on confirmation tomorrow. Many of those documents that could have been 
produced for review were withheld after being screened by a lawyer 
representing a number of people under investigation or at least 
witnesses in the investigation by Special Counsel Mueller, which raises 
serious questions as to what documents we got, which ones were being 
held, and why they were being held.
  Despite the lack of documents, the Judiciary Committee forged ahead 
and conducted its hearings. Before a vote was taken, Dr. Blasey Ford 
courageously came forward with her very serious allegations regarding a 
sexual assault that occurred when she and Judge Kavanaugh were in high 
school. Again, not for the first time, I and others called for a pause 
to allow for further investigation, to update the background check that 
every nominee goes through. That call was rebuffed for some period of 
time.
  Finally, faced with mounting public pressure, the Judiciary Committee 
agreed to a second hearing. Both the committee and the White House 
subsequently rejected any additional background investigation to be 
conducted by the FBI. As it turned out, my colleague Senator Flake felt 
compelled to call for such an investigation on the morning of the vote, 
which delayed the confirmation process for another week.
  While I am certainly grateful and glad that the chairman and the 
majority leader and the President agreed to delay the vote in order to 
allow for an FBI investigation, I believe the investigation was far too 
limited to have any real use, especially since no further hearings 
would ever be held.
  In my career of almost 40 years as a lawyer, I have examined many FBI 
reports, and I have examined many background checks. In my review of 
what was submitted as a result of Senator Flake's request, the FBI was 
simply not allowed to do what it does best, which is to follow the 
evidence and the leads. In this case, we put the proverbial cart before 
the horse. The investigation should have taken place before the hearing 
so that the Senators on the Judiciary Committee could have had the 
benefit of all the information they needed when questioning witnesses 
and evaluating credibility, which is where this is coming down.
  I believe that in cases like this, the witnesses should be compelled 
by subpoena--not just Dr. Ford, not just Judge Kavanaugh, but other 
witnesses who are named should have been compelled by subpoena, if 
necessary, to give testimony, whether in the public hearing or by 
deposition--procedures that have been invoked by this body on many 
occasions.
  This leads me to another more procedural point. Many of those who 
want to press forward with this nomination have been invoking the 
presumption of innocence, and I understand that. The presumption of 
innocence, however, is afforded to those in this country in our 
criminal justice system. It is afforded to those who are accused of 
criminal activity, and it requires the government to prove, to rebut 
that presumption. In other words, that presumption stands between 
someone accused of a crime and their going to prison and having their 
liberty taken away from them.
  They have now said that the presumption of innocence should be 
applied to judicial nominations. But the presumption applies in a court 
before we can deprive someone of their liberty, incarcerate them. It is 
not necessarily applicable when we are simply looking to provide 
someone with a lifetime appointment to the judiciary. The presumption 
of innocence for a nominee would, in effect, turn into a presumption of 
confirmability that I do not believe is called for in the Constitution.

  I certainly would agree, however, that given the most recent 
circumstances, we, as a body, need to establish some type of standard, 
some guidelines for our nominees so that this doesn't happen again.
  I would say that if we were to have anything close to the high 
standard of a presumption of innocence, there has to be a full and 
complete investigation before any hearing in order to determine whether 
the presumption can be overcome. It is the only way to do it.
  Remember, in this instance, there are no appeals; there is no review. 
We get no do-overs once we make this vote. We have to take the time and 
put forth the necessary effort to get it right--putting forth the time, 
even if it means the Supreme Court operates with eight members for a 
period of time. That is OK. I went to the arguments just the other day, 
and they got along just fine, listening to the arguments that were 
heard that day.
  The American people are understandably disgusted by the way this has 
been handled. They are disgusted with people on both sides of the 
aisle, and they were disgusted even before these allegations came to 
light. They have reason to doubt the integrity of our independent 
judiciary now more than ever, with a Supreme Court that will be so 
divided and appears to be so partisan. There will forever be a cloud 
over this nomination and this nomination process, regardless of the 
outcome of tomorrow's vote.
  Many also have reason to doubt the integrity of this body for the way 
this has been handled. When facing difficult decisions, I often reflect 
on what I learned from one of my most influential mentors, the late 
Senator Howell Heflin, a former chief justice of the Alabama Supreme 
Court. Judge Heflin often talked about the Supreme Court as the 
``People's Court.'' Every day, he said, the Supreme Court of the United 
States deals with real people, their basic human rights and liberties. 
It has a direct impact on the daily lives of every American, and the 
people who serve on the Court should be held to the highest of 
standards before being allowed the privilege of making those weighty 
decisions.
  I don't believe this process has led us to the person best suited to 
hold this position. This isn't about politics; no, it far transcends 
that. I have always said that I am inclined to vote for Presidential 
nominees, but they do not have to have that ``presumption of 
confirmability.'' We have serious doubts about this nominee that may 
never be resolved. It certainly was not resolved by the limited 
investigation that the Senators had to go view in bulk--one copy with 
10 Senators sitting, passing it around. We have serious doubts

[[Page S6604]]

about this nominee. People across this country have serious doubts 
about this nominee. To quote the late Senator Robert Byrd:

       No individual has a particular right to a Supreme Court 
     seat. If we are going to give the benefit of the doubt, let 
     us give it to the Court. Let us give it to the country.

  It was my hope that this body would wind up being on the right side 
of history with this vote and not a political side chosen in the 
moment. My preference would have been for the President to send us a 
new, consensus nominee, much as President Reagan did many years ago 
when he nominated Justice Kennedy. Send us another nominee and give the 
Senate a second chance to act as a uniter, not a divider. It now 
appears, however, that we will need to find another way that we, as a 
body--which has been described in the past as the most deliberative 
body in the world; many would question that description today--must 
find another way to show the American people that we can uphold the 
lofty ideals we have ascribed to.
  Tomorrow, this nomination process will have run its course, but our 
work for our constituents and all of those sitting in the Galleries 
tonight and all of those watching across this country who will see and 
follow this vote tomorrow--our work for our constituents will go on. 
Our work for this country will go on. Regardless of this vote tomorrow, 
it will go on, and we, as a body, have to get to a place where we look 
forward, not backward.
  I am confident; I know in my heart that we can restore the Senate to 
the place it was when I worked here as a young lawyer, a place where 
compromise meant progress, not a lost battle. Think about that--
compromise meaning progress and not a lost battle or war. We must set 
aside the divisiveness, shoulder our responsibilities, and work 
together. We must do so for the good of this body, for the sake of the 
country that we all love.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alaska.
  Ms. MURKOWSKI. Mr. President, I come to the floor this evening to 
share my thoughts on what has been an extraordinarily long, difficult, 
and truly painful process.
  As we took up the cloture motion on the nomination of Brett Kavanaugh 
to the U.S. Supreme Court, the process that led us to this vote today 
has been, in my view, a horrible process, a gut-wrenching process, 
where good people--good people--have been needlessly hurt, where a 
woman who never sought the public spotlight was, I think, cruelly 
thrust into the brightest of spotlights; a good man--a good man--with 
sterling academic credentials, an unblemished professional record, both 
as the professional lawyer and judge that he was and also as a husband 
and father of two young girls, has been damaged--damaged terribly.
  As both of these individuals, Dr. Ford and Judge Kavanaugh, have been 
harmed, their families have, too, and we need to, we must, do better by 
them. We must do better as a legislative branch. We have an obligation, 
a moral obligation, to do better than this.
  I have spent more time evaluating and considering the nomination of 
Judge Kavanaugh than I have any of the previous nominations to the U.S. 
Supreme Court that I have been privileged to review. I have had the 
opportunity to vote on five Justices prior to this, and I took my time. 
I was deliberate; I was thoughtful. Some accused me of being too 
deliberate, too thoughtful, taking too much time, but this is important 
to me. It should be important to all of us, and I know it is important 
to all of us.
  I studied the record. I sat with Judge Kavanaugh for a lengthy period 
of time--about an hour and a half--and asked the questions that I had, 
and then I did more due diligence, reviewed the cases, and did my 
homework, listened to the concerns that were raised by many in my State 
on issues that were all over the board, whether it was a woman's right 
to choose, whether it was the Affordable Care Act, whether it was 
Executive authority, deference to the agencies, Native issues. I took 
considerable time.
  When the hearings came, not being on the Judiciary Committee, I paid 
attention. I followed the testimony of the judge, the very critical 
questioning from many of my colleagues on the other side of the aisle, 
and then at the end of the process--or, seemingly, what we believed to 
be the end of the process--there were more questions. I went back to 
Judge Kavanaugh and had a good conversation with him.
  Then the allegations that we have been discussing and trying to 
understand more about came forward, and we all moved from focusing on 
the issues to truly a discussion that none of us ever thought we would 
be having when it came to a confirmation process for someone to the 
highest Court in the land.
  There was more work to be done. I was one who wanted to make sure 
there was a process going forward, and when there were more questions 
that were raised after the initial process, I was one who joined in 
asking that the FBI step in and do further review.
  I have been engaged in this lengthy and deliberative process for 
months now, and I was truly leaning toward supporting Judge Kavanaugh 
in his nomination as I looked to that record. But we know that in our 
role of advice and consent, it is not just the record itself. There is 
more that is attached to it. It is why, when in the State of Alaska, 
nominations for judges go forward, you rate them not only on their 
professional competence--what they have demonstrated through their 
record--but also on matters of temperament and demeanor, which are 
very, very important.
  So we moved--we shifted--that conversation from so many of the issues 
that I had been focused on to other areas that are also important in 
evaluating a nominee for the courts. But I listened very carefully to 
the remarks, the strong, well-articulated remarks, of my colleague and 
my friend who sits next to me here, Senator Collins, and I found that I 
agreed with many of the points that she raised on the floor earlier.
  I do not think that Judge Kavanaugh will be a vote to overturn Roe v. 
Wade, and I also join with her in saying that I do not think that 
protections for those with preexisting conditions will be at risk.
  I also do not think that he will be a threat to Alaska Natives. This 
was an issue that certainly had been raised, but I had an extended 
conversation with the judge on just these issues, and I believe that he 
recognizes, as he told me, that Alaska Natives are not in a place 
identical to Native Hawaiians. Alaskan Tribes are included on the list 
of federally recognized tribes, and the fact remains that Native 
Hawaiians are not. This is a distinction; this is a difference.
  I am one in this body who has said that I would like to see Native 
Hawaiians there, and I worked with my friend Senator Akaka when he was 
in this body to help advance that; I supported that. But the fact 
remains that the constitutional status of Alaska Natives and the Indian 
Commerce Clause are simply not at play with this nomination. I don't 
believe that. So the question is fairly asked: Do you think he is going 
to be there on issues that matter to Alaskans, that you have taken 
strong positions on?
  The reason I could not support Judge Kavanaugh in this cloture motion 
this afternoon is that in my role, in my responsibility as one Senator 
on this floor, I take this obligation that we have in the role of 
advice and consent as seriously as anything that I am obligated or 
privileged to be able to vote on. I have a very high standard. I have a 
very high bar for any nominee to the Supreme Court of the United 
States.
  The Code of Judicial Conduct rule 1.2--this is one that many, many 
people in this body know--states that a ``judge shall act at all times 
in a manner that promotes public confidence and the independence, 
integrity, and impartiality of the judiciary and shall avoid 
impropriety and the appearance of impropriety.''
  I go back, and I look to that. It is pretty high; it is really high: 
A judge shall act at all times--not just sometimes, when you are 
wearing your robe, but a judge should act at all times in a manner that 
promotes public confidence--public confidence. Where is the public 
confidence?
  So it is high, and even in the face of the worst thing that could 
happen, a sexual assault allegation, even in the face of an overly and 
overtly--overtly--political process, politicized process, and even when 
one side of this Chamber is absolutely dead set on defeating his 
nomination from the very

[[Page S6605]]

get-go, before he was even named, even in these situations, the 
standard is that a judge must act at all times in a manner that 
promotes public confidence in the independence, integrity, and 
impartiality of the judiciary and avoid impropriety and the appearance 
of impropriety.
  After the hearing that we all watched last week, last Thursday, it 
became clear to me--or was becoming clearer--that the appearance of 
impropriety has become unavoidable.
  I have been deliberating, agonizing, about what is fair. Is this too 
unfair a burden to place on somebody who is dealing with the worst, the 
most horrific, allegations that go to your integrity, that go to 
everything you are?
  I think we all struggle with how we would respond, but I am reminded 
that there are only nine seats on the Bench of the highest Court in the 
land, and these seats are occupied by these men and women for their 
lifetime. So those who seek one of these seats must meet the highest 
standards in all respects at all times, and that is hard.
  We are in a time when many in this country have lost faith in the 
Executive branch, and it is not just with this administration. We saw 
much of that in the last as well.
  Here in Congress, many around the country have just given up on us. 
They have completely said: We have had enough. But I maintain that the 
public still views--I still view--that there is some small shred of 
hope that remains with our judiciary, this judiciary that must be 
perceived as independent, as nonpartisan, as fair and balanced in order 
for our form of government to function.
  It is that hope--it is that hope--that I seek to maintain, and I 
think that is why I have demanded such a high standard to maintain or 
regain that public confidence because it is so critical that we have 
that public confidence in at least one of our three branches of 
government.
  I think we saw from the vote earlier today and we have seen from the 
statements of several of our colleagues that it does appear that Judge 
Kavanaugh will be seated on the Supreme Court without my vote. It is my 
hope--it is truly my hope--that Judge Kavanaugh will share that same 
hope of rebuilding, maintaining a level of public confidence, that he 
will strive for that ideal every day. It is my hope that he will be 
that neutral arbiter, the umpire who calls only the balls and the 
strikes, and that he will be that force for stability.
  I believe that Judge Kavanaugh is a good man. He is a good man. He is 
clearly a learned judge, but in my conscience--because how I have to 
vote at the end of the day with my conscience--I could not conclude 
that he is the right person for the Court at this time.
  This decision has been agonizing for me. It is as hard a choice, 
probably as close a call as any that I can ever remember, and I hope--I 
hope and I pray--that we don't find ourselves in this situation again.
  But I am worried. I am really worried that this will become the new 
normal, where we find new and even more creative ways to tear one 
another down, and good people are just going to say: Forget it. It is 
     not worth it.
  I am looking at some of the comments and the statements that are 
being made against me and against my good friend, my dear friend from 
Maine--the hateful, aggressive, truly, truly awful manner in which so 
many are acting now. This is not who we are. This is not who we should 
be. This is not who we raised our children to be.
  So as we move forward, again, through a very difficult time for this 
body and for this country, I want to urge us to a place where we are 
able to engage in that civil discourse that the Senate is supposed to 
be all about--that we show respect for one another's views and 
differences and that when a hard vote is taken, there is a level of 
respect for the decision that each of us makes.
  There is something else that I do hope. Again, I refer to my friend 
from Maine. I will note that if there has been a silver lining in these 
bitter weeks--which, quite honestly, remains to be seen--I do think 
what we have seen is a recognition by both sides that we must do more 
to protect and prevent sexual assault and help the victims of these 
assaults.
  There has been a national discussion. There has been an outpouring of 
discussions, conversations, fears, tears, frustration, and rage. There 
is an emotion that really has been unleashed in these recent weeks, and 
these are discussions that we need to have as a country.
  We need to bring these survivors to a place where they feel they can 
heal, but until they come out of the shadows and do so without shame, 
it is pretty hard to heal.
  I have met with so many survivors, and I know that every single one 
of us has. I have heard from colleagues as they shared with me that 
they have been truly surprised--many stunned--by what they are learning 
is the prevalence of this, unfortunately, in our society today.
  In Alaska and, as the Presiding Officer knows, in his State, the 
levels of sexual assault we see within our Native American and Alaskan 
Native communities are incredibly devastating. It is not something that 
we can say we will get to tomorrow. We heard those voices, and I hope 
that we have all learned something. We owe it to the victims of sexual 
assault to do more and to do better and to do it now, with them.
  I am going to close. I truly hope that we can be at a place where we 
can move forward in a manner that shows greater respect, greater 
comity. We owe it to the people of America to return to a less 
rancorous confirmation process.
  In the spirit of that comity--and again, while I voted no on cloture 
today and I will be a no tomorrow--I will in the final tally be asked 
to be recorded as present, and I do this because a friend, a colleague 
of ours, is in Montana this evening, and tomorrow, at just about the 
same hour that we are going to be voting, he is going to be walking his 
daughter down the aisle, and he will not be present to vote. So I have 
extended this as a courtesy to my friend. It will not change the 
outcome of the vote, but I do hope that it reminds us that we can take 
very small steps to be gracious with one another and maybe those small 
gracious steps can lead to more.
  I know that as hard as these matters are that we deal with, we are 
human and we have families that we love. We don't spend nearly enough 
time with them. I am sure we can do one small thing to make that family 
a little bit better. That is a better way for tomorrow.
  With that, I yield the floor.
  The PRESIDING OFFICER (Mr. Hoeven). The Senator from New Jersey.
  Mr. BOOKER. Mr. President, on September 16, Dr. Christine Blasey Ford 
publicly came forward to share that Brett Kavanaugh had sexually 
assaulted her when they were in high school. This was a remarkably 
courageous act. It was one that she hesitated to do. It was something 
that she struggled with, but she said time and again that she believed 
it was her civic duty and her sense of citizenship--that act of grace, 
that feeling that you have a commitment to country, to causes larger 
than yourself. She put herself forward. She said she was terrified to 
do so. She said she feared for what the impact would be on her family.
  Indeed, the impact on her family was terrifying. She endured hatred 
and vile poured out to her--death threats. She had to leave her family 
home and split her family up at times. She had to engage security for 
her own protection.
  When Dr. Ford came before the Judiciary Committee to testify, she 
reiterated that she was afraid. She reiterated how terrified she was, 
but she stated again and again this ideal of patriotic duty and civic 
responsibility because she believed that there is something about our 
institutions that is sacred and that for the highest Court in the land, 
there could be millions of qualified people in America, thousands of 
folks. Indeed, the President's list itself has dozens of folks. She 
said that this person who sexually assaulted her should not go on the 
highest Court in the land for a lifetime appointment.
  So she sat before us in the face of endless harassment, with glaring 
public scrutiny into all aspects of her life and the threats against 
her family. Dr. Ford gave testimony that was powerful and that, to 
many, was jarring. She talked about her private truth, her experience, 
and how it affected her life.
  She said again and again that she wanted to be helpful to the 
committee.

[[Page S6606]]

She treated every member of the committee on the Republican side and 
the Democratic side with respect. She extended them grace. She was 
cross-examined by a prosecutor for the Republicans. She engaged with 
that prosecutor with a sense of decency and honor. She didn't stretch 
the truth or try to dodge questions. She spoke honestly and candidly 
and from her heart. She shared details that she said had been seared 
into her memory.
  She talked about the narrow set of stairs in that house that she 
climbed to use the restroom. She talked about being pushed from behind 
into a bedroom. She talked about the music being turned up louder as 
she struggled. She talked about Brett Kavanaugh on top of her, hand 
over her mouth, trying to stop her as she yelled for help. She said she 
thought she was going to be raped. She said she thought she might be 
accidentally killed.
  There was Mark Judge, a person she identified, watching, refusing to 
help her. Both Mark and Brett were laughing. Dr. Ford described that 
laughter as searing into her memory. She talked about it as being 
indelible. She told us she would never forget, and that she would 
``never forget the uproarious laughter between the two and their having 
fun at my expense.''
  I believe her. I believe Dr. Ford. I still believe her, and many of 
my colleagues on both sides of the aisle spoke up, calling Dr. Ford's 
testimony credible. Many have said they believe her or, at least, that 
they believe someone assaulted her. They gave credence to the power of 
that experience--an experience that reflects that of many people who 
experience trauma. You don't remember it like a video recording, but 
there are moments that are seared into your mind. Her experience was 
consistent with people who have experienced trauma. Even though the 
Senate hearing would not allow experts to come in, we all know enough 
now to know that the way she described her experiences and the things 
she remembered all spoke to the ability of a courageous American doing 
their civic duty.
  I was surprised that even the President of the United States called 
her sincere and called her testimony compelling. That was until he 
stood at a rally and mocked her. The President of the United States, 
the most powerful person in the country--perhaps the most powerful 
person in the world--mocked her and got uproarious laughter. The same 
thing that was seared in her memory: People were laughing at her. The 
President ignited that in a crowd and made her again the focus of 
laughter and mocking.
  To this body that I revere, this body that I love; to my colleagues, 
whom I respect, on both sides of the aisle; to this body that was 
designed to be the world's most deliberative body; to this body that 
was designed to be thoughtful, to take the time to analyze, the 
question is this: We heard words about her testimony, but what followed 
those words? Were they like dust in the wind or were they substantive 
words that cause us to believe her, admiring and honoring her courage 
for coming forward? Did we treat her that way?
  Well, if they did believe her, if they did honor her words and her 
courage and the risk she took, then this body and the Judiciary 
Committee, of which I am a part, would have insisted on a full, fair, 
thorough, and complete FBI investigation that included the many 
witnesses who stepped forward who could have corroborated her testimony 
and could have contradicted Judge Kavanaugh's testimony. This body 
would have insisted that we take the time to do a thorough 
investigation because it is not just about Dr. Ford. There are millions 
of survivors, women and men, watching how this body will deal with the 
seriousness of sexual assault.

  Will we listen to survivors? Will we honor them enough to fully 
investigate their charges? These are not just charges alone. These are 
charges against someone who is up for one of the most important 
positions in our Nation--a lifetime appointment to the Supreme Court.
  No, they did not honor them. If they had honored them, they would 
have insisted on a full FBI investigation. Indeed, when another 
survivor, Ms. Ramirez, came forward, talking about her incident with 
Judge Kavanaugh during college days--when Judge Kavanaugh diminished 
his drinking, evasively talked about his drinking--classmate after 
classmate, after his testimony, came forward and said he was lying and 
he was misleading. Republican and Democratic classmates were offended 
by the way he talked about his behavior. It was in those college days 
that Ms. Ramirez said Judge Kavanaugh exposed himself to her. She 
identified 20 witnesses that were either eyewitnesses or could have 
corroborated the evidence.
  She talked in detail about who could have substantiated her claims 
about the kind of drunkenness that we heard in public statements from 
his friends, which seemed consistent and seemed to implicate the 
truthfulness of someone who was going to the highest Court. Did we 
honor that woman? Did we honor that survivor by doing an investigation, 
by going to and at least talking to the 20 witnesses that she put 
forward--another woman who is being mocked, another woman who is a 
victim of hate being spewed at her, belittling her? Did we honor a 
survivor and simply listen and interview the 20 people she said could 
have proved the factual nature of her allegation?
  No, we didn't. We didn't honor a survivor. We didn't listen to a 
survivor. We didn't take the time in the world's most deliberative body 
to listen to a woman's claims and take the steps to see if they were 
true or not.
  This is what to me is so deeply offensive. It is that you have two 
women who come forward making claims that even the President said, at 
first, seemed sincere and compelling, but we didn't take the next step 
to fully investigate their claims so that we could know what the facts 
are.
  The truth is something that the American public deserves. An 
investigation that gets to the truth is something that the American 
public deserves, that Dr. Ford deserves, that Ms. Ramirez deserves, and 
that even Brett Kavanaugh deserves--to let the truth come out. But this 
FBI investigation was part of a larger sham.
  People on the right, colleagues of mine, accused Dr. Ford, with her 
sincere testimony--they accused her of being part of a coordinated, 
partisan smear campaign. Think about that. She told her husband in 2012 
about the attack. Was she somehow coordinating with Democrats back in 
2012 before Judge Kavanaugh was anywhere near being on the Supreme 
Court? No.
  She talked about it with her therapist. She talked about it with her 
husband. She said it was Brett Kavanaugh years before Brett Kavanaugh 
was even on a list of consideration by the President.
  In 2013, she discussed the assault again in an individual therapy 
session. In that same year, she told a close friend that she had been 
assaulted as a teenager while she was trapped in the room with two 
drunken boys. That was not a coordinated, partisan attack back in 2013.
  In 2016, she told another friend she had been sexually assaulted in 
high school by someone who went on to become a Federal judge. In 2017, 
she told yet another friend about the assault. She told each of these 
three friends that a person who had assaulted her had become a Federal 
judge. This does not sound like some kind of partisan smear tactics; 
this sounds like a woman who has been telling the truth for years about 
Brett Kavanaugh.
  The least this body could do is pause for a moment and not do a sham 
FBI investigation where they talk to just a handful of people but do a 
full FBI investigation, because these charges are serious.
  Meanwhile, millions of Americans--survivors themselves and others--
are watching to see how we deal with something that the Centers for 
Disease Control says happens to one out of every three women in 
America. How do we deal with those charges? It happens to one out of 
every six men in America. How do we deal with those charges? When a 
survivor comes forward, how does the world's most deliberative body 
honor that?
  What we are seeing here is a coordinated, partisan effort to put 
blinders on, to not seek the truth, and to rush this to tomorrow to a 
final vote.
  Long before Dr. Ford's bravery, I was one of those Democrats, one of 
those Senators, one of those Americans who expressed their sincere and 
deeply held concerns about Judge Kavanaugh's

[[Page S6607]]

record. I said early that I would not support him. I opposed his 
nomination. Then, I opposed his nomination because I was deeply 
concerned that we have a President of the United States who is the 
subject of a criminal investigation, and that President picked the one 
person from his Heritage Foundation and Federalist Society list who had 
a view of Presidential power that I believed would give that President 
immunity should issues relating to that investigation come before the 
Supreme Court.
  I am deeply troubled about his views on women's right to make their 
own medical decisions. I am troubled about his views on workers' rights 
to organize, on voting rights, on civil rights, and on the principle of 
equal justice under the law. I am concerned about things that he said 
about foreign dark money influencing our campaigns. His record 
demonstrated very clearly to me that, if confirmed to the Supreme 
Court, Judge Kavanaugh would continue to prioritize the interests of 
the powerful few over the rights of everyday Americans and that we 
would see an erosion of individual rights in this country. But I still 
believed we needed to have a fair and thorough vetting of this nominee 
consistent with our constitutional obligations and that it would 
eventually get to the floor and we would have our vote.
  In the many weeks leading up to Judge Kavanaugh's hearing before the 
Judiciary Committee, many Democratic colleagues and I pushed for the 
same kind of transparency and a process. Even if we knew where we were 
going to go, the process should have been fair. The process should have 
been bipartisan.
  The Judiciary Committee has a long history of the majority and 
minority working together to set ground rules for the committee 
process. I watched the Judiciary Committee for many years before I came 
to this body. It was the No. 1 committee I wanted to be on 5 years ago 
when I came to the Senate. There are legends still on that committee, 
statesmen on both sides of the aisle, men I respect. But this process 
from the very beginning has been a sham. It has undermined the ability 
of Senators to perform our constitutional duty to advise and consent on 
the nominee because of the withholding of critical information that I 
believe is absolutely necessary to evaluate someone.
  This constitutional duty means that we should have a process that 
allows transparency into that person's record. The public has a right 
to know who the individual is that we are voting on tomorrow, what 
their record is. The public has a right to know. Why would we hide 
their record from public scrutiny?
  Step 1 of the sham was the Republican majority's refusal to request 
any records from Judge Kavanaugh's time as Staff Secretary to President 
George Bush. Zero records were requested whatsoever. Brett Kavanaugh 
himself held that position for 3 years. He called those 3 years of his 
year the ``most interesting and most formative years'' of his career, 
the most interesting and formative in shaping his approach to serving 
as a judge and during which he presumably advised the President on 
everything from national security policy to a proposed constitutional 
ban on same-sex marriages. So many critical issues that are germane to 
his job and his experience and the formation of his ideals were 
happening during those times. But they said we could see nothing from 
his record, even things that are not classified, not national security, 
things that would give us a better window into who he is.
  Step 2 of the sham was to create a wholly unaccountable process for 
the fraction of the White House records that the Republican majority 
did request from Kavanaugh's time in the White House Counsel's Office. 
This process was essentially made up. It had no reflection on the 
history of his body of work--no reflection at all.

  What happened was they put into place a practice where a private 
lawyer, Bill Burck--who happens to be a longtime political operative, 
who was a former deputy to Brett Kavanaugh himself when he was Staff 
Secretary--was put into part of the process as a choke hold on 
documents getting to Senators for our evaluation. Most of the documents 
of this candidate's work product have not been seen by any Senator 
here. In fact, about 90 percent of his relevant work experience, his 
relevant work product, has not been reviewed by any Senator here.
  Imagine hiring somebody whose resume you have only seen 10 percent of 
because 90 percent is obscured. Most of the folks here wouldn't hire an 
intern in their office if somebody was hiding 90 percent of their 
resume.
  Then there is step 3 of the sham. In conjunction with Mr. Burck, the 
committee chairman designated 186,000 pages something that was new 
called ``committee confidential'' in order to hide them from the public 
because they might harm the nomination. Imagine this: With the public 
having a right to know, the public needing transparency, now they are 
hiding yet again, under the name ``committee confidential,'' critical 
documents. They withheld 102,000 pages from the committee altogether, 
threatening to invoke some nebulous constitutional privilege. As a 
result, today, just hours before the final vote, only 7 percent of 
Kavanaugh's record from the Bush White House has been released to 
Senators. We are making a decision knowing only 7 percent of his work 
product.
  When women's rights, workers' rights, LGBTQ rights, voting rights, 
and affordable healthcare are all in the balance, we know so little 
about this candidate. Because of all that is at stake, several 
colleagues and I made a decision to release those documents, but it was 
still just a fraction.
  Meanwhile, Judge Kavanaugh's initial testimony before the Judiciary 
Committee raised my concern because he continued to evade questions, 
refused to answer our questions.
  After Dr. Blasey Ford came forward, he gave his testimony, and I was 
stunned. You see, at Judge Kavanaugh's initial hearing in early 
September, he testified that he wanted to stay ``three zip codes away 
from politics.'' He insisted that the Supreme Court must never--I 
emphasize that word--never be viewed as a partisan institution. But 
when he came before the Judiciary Committee again last week, Judge 
Kavanaugh jettisoned his own advice, his own belief in judicial 
temperament, his own belief in how a judge should behave and be 
nonpartisan, and he leveled blatantly political accusations. He said 
that the allegations against him were nothing more than ``an 
orchestrated political hit,'' even speculating that they were motivated 
by ``a revenge on behalf of the Clintons.'' He cast blame on outside, 
leftwing opposition groups. He told the Democrats who were questioning 
him that the hearings had been ``an embarrassment.'' He was 
belligerent. He was evasive. At times, he was outright deceptive, and 
at times, he was deeply disrespectful to my Senate colleagues. He 
displayed the type of fierce partisanship that no American should ever 
want to see in a Federal judge. He went on to say almost as a menacing 
threat that ``what goes around, comes around.''
  Is this someone who can sit on the highest Court in the land, where 
political issues might come before him? Has he not already revealed 
himself to be deeply partisan? Has he not already revealed himself to 
have a deep-seeded anger toward people of certain political stripe? Is 
this someone who shows the kind of judicial temperament, not for a 
district court, not for a circuit court, but for the highest Court in 
the land, the Court of last resort?
  He didn't say all of this in response to questions. These weren't 
off-the-cuff comments. This was part of his prepared testimony. Those 
quotes were in his prepared testimony.
  In another instance during his testimony, he warned that ``this is a 
circus.'' He said, ``The consequences will extend long past my 
nomination. The consequences will be with us for decades.''
  That is how I want to end. What are the consequences for a sham 
process, for a sham FBI investigation? What are the consequences in 
relation to women who came forward before the world's most deliberative 
body with credible accusations of sexual misconduct, of sexual assault, 
of sexual violence? What are the consequences to a body that runs a 
partisan process, that ignores the truth, that shields relevant aspects 
of his record--90 percent--from the public? What are the consequences 
as they rush to the Senate floor hoping nobody knows the truth and 
ignoring investigating some of the most serious charges that could be 
leveled against

[[Page S6608]]

someone--charges of violence, charges of assault? What are the 
consequences for us in this body behaving in this way? What are the 
consequences for Dr. Christine Blasey Ford, who has forever altered her 
life for her civic duty, for her patriotism, for her love of country? 
She sacrificed to come forward, and how do we treat her?
  This has been an emotional week for so many. I have seen and heard 
and witnessed the pain and the trauma that has been dredged up. I have 
heard from some of my colleagues in private meetings about dozens of 
people coming forward to them, having never told people about their 
sexual assault, and now they come and tell their Senator, hoping that 
their story and that their pain that they haven't even shared with 
their spouse will somehow make a difference in the larger story of our 
country, will somehow make a difference at this moment when two women 
are not being listened to and when their stories are not getting worthy 
recognition, worthy investigation. I heard colleague after colleague 
tell me the stories, the painful stories.
  I heard them myself from friends of mine who I never knew had been 
assaulted. I never knew of their pain, never knew of their trauma. But 
at this moment in American history, they felt they had to come forward. 
They had to tell their truth, like Christine Blasey Ford, like Ms. 
Ramirez. They felt now was the time to speak up and stop this Nation 
from making a mistake and try to stop the injustice and try to end a 
national nightmare where one out of three women is assaulted and most 
of them don't feel comfortable coming forward. They don't feel safe 
coming forward. They feel that if they come forward, they will be 
maligned, hated, disrespected, disregarded; that their charges will be 
swept under the rug; that their charges will be ignored. Yet a chorus 
of women and men all across this country have been telling their 
stories, screaming at this Nation, hoping the national conversation 
will shift in this country from abusing those who have been abused to 
elevating truth again.
  This body has had a test, and we are failing that test. This body has 
had a chance. This body has had a responsibility, and we have 
surrendered that responsibility. So tomorrow we vote. It seems like the 
die is cast.
  I heard there were celebrations and cheering in the White House. And 
in the last few hours, I also heard the pain and the anguish and the 
hurt, and I have heard the tears. It seems so unjust. It seems so 
unfair that two courageous women came forward to this body, and we 
couldn't even investigate their claims. We couldn't even take time to 
talk to witnesses. A lot of folks are now asking me: What now?
  I want to conclude by reading some words from another painful period 
where people didn't know what this body would do. There was injustice 
in this land. People didn't know what this body would do. Hundreds of 
thousands came forward to march and to protest and to sit in. They 
didn't know what this body would do, but they stood anyway and they 
fought anyway. Sometimes they were beaten. In one case, on a bridge in 
Alabama, they were beaten and bloodied. One of my colleagues in the 
other Chamber,  John Lewis, had his head split open. They eventually 
got over that bridge and got to Montgomery, and a man named King gave 
this speech to those people who were tempted to surrender to cynicism 
in that time. He gave this speech to those people who wanted to give 
up. He gave this speech to those people who were hurting. This is what 
he said:

       I know you're asking today, ``How long will it take? 
     Somebody's asking, ``How long will prejudice blind the 
     visions of men, darken their understanding, and drive bright-
     eyed wisdom from her sacred throne?'' Somebody's asking, 
     ``When will wounded justice, lying in prostrate on the 
     streets . . . be lifted from this dust of shame to reign 
     supreme among the children of men?'' Somebody's asking, 
     ``When will the radiant star of hope be plunged against the 
     nocturnal bosom of this lonely night, plucked from the weary 
     soul with chains of fear and the manacles of death? How long 
     will justice be crucified, and truth bear it?''
       I come to say to you this afternoon, however difficult the 
     moment, however frustrating the hour, it will not be long, 
     because ``truth crushed to the earth will rise again.''
       How long? Not long, because ``no lie can live forever.''
       How long? Not long, because ``you shall reap what you 
     sow.''
       How long? Not long, because the arc of the moral universe 
     is long, but it bends toward justice.

  I say to every American who is hurting tonight, every American who is 
angry tonight, tomorrow we face a defeat, but we shall not be defeated. 
Tomorrow, it may seem like a loss, but all hope is not lost.
  I have faith in us as a country. I know it has been a long journey. I 
know we have suffered much, but I have a faith in this country that is 
abiding and cannot be destroyed because we are a nation that always 
finds a way to move forward, to learn, to grow. What is dependent upon 
us doing that is for us to never ever give up. Never give up.
  The days ahead will be difficult. It will not be easy, but I have 
faith in America. We will learn. We will grow. We will get better. We 
will come together if we never give up.
  Tomorrow, the vote may be what it is. The die may be cast, but I will 
never give up on this country. I will never give up on women. I will 
never give up on the ideals and principles we all swear an oath to that 
this Nation, one day, truly will be a nation of liberty and justice for 
all.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. SANDERS. Mr. President, several of my Republican colleagues have 
mentioned that some of us came out in opposition to Judge Kavanaugh 
almost immediately after he was nominated by the President. Count me 
in. I was one of those people. I say that without any apologies 
whatsoever because I was familiar with the record of Brett Kavanaugh on 
the court where he sits. I was familiar with his record as a member of 
the Bush administration.
  I didn't have all of the information, but I surely had enough to 
understand that if confirmed and seated, he would absolutely be a 
member of the hard-right majority, which has done so much harm to the 
people of this country over the last many years. Right off, within 24 
hours, I was opposed, and that was exactly the right decision. That is 
why tomorrow I will vote against the seating of Judge Kavanaugh.
  Many people in this country do not fully appreciate the role the 
Supreme Court plays in our lives. They know what the President does. 
Maybe they know what Congress does. They don't know what the Supreme 
Court does.
  I would suggest that in North Dakota and Vermont and all over this 
country, you have people who are saying: What kind of corrupt campaign 
finance system do we have? It is not just progressives who say that. 
Conservatives say that. Republicans say that. Democrats say that. Who 
believes in the United States of America that a handful of 
billionaires--some Democrats, mostly Republicans--can spend hundreds 
and hundreds of millions of dollars to elect candidates who represent 
their interests? Who thinks that is right? Not many people do.
  People do not understand that we are in that position today because 
of a 5-to-4 Supreme Court decision regarding Citizens United--a 
decision that is now undermining American democracy. There are those 
who think Citizens United did not go far enough, that billionaires 
should be able to give money directly to Senators and Congressmen, make 
them directly their employees. I have zero doubt that Judge Kavanaugh 
will continue that majority approach to allowing billionaires to 
control our political system.
  In 1965, an enormously important act was signed by Lyndon Johnson, 
called the Voting Rights Act. It said that all of our people, 
regardless of the color of their skin, should have the right to vote. 
It is not a very radical idea. Yet a few years ago, the majority of the 
Court gutted that decision and said that it wasn't necessary anymore. 
States would do the right thing; time has come and gone. Days, hours 
after that decision was made--a 5-to-4 decision--attorneys general all 
over this country and Governors were working overtime to figure out how 
they could suppress the vote, how they could make it easier on 
themselves to deny people of color, poor people, and young people, the 
right to vote. That was a Supreme Court decision.
  If you are upset and you are wondering about how in America we have 
States trying to make it harder for people to vote when our voter 
turnout

[[Page S6609]]

numbers are pretty low compared to the rest of the world, that was a 
Supreme Court decision. I have zero doubt again, when it comes to 
protecting our democracy and the rights of people to vote, that Judge 
Kavanaugh will be on the wrong side of that issue.

  Today in America we are the only major country on Earth not to 
guarantee healthcare to all people. The Affordable Care Act was an 
important step forward. By a 5-to-4 decision, the Supreme Court ruled 
that expanding Medicaid in a State was optional, and we had many--I 
think 17--States that said: No, we are not going to expand Medicaid. 
Millions of low-income people, children were denied the healthcare this 
Congress voted to give them. I have zero doubt that Mr. Kavanaugh will 
continue that effort to make it impossible for us to guarantee 
healthcare to all of our people.
  The Janus decision attacking unions was a 5-to-4 decision; the Muslim 
travel ban, a 5-to-4 decision. I didn't need to hear about the issue of 
sexual assault in the beginning before it arose. I knew this nominee 
would be highly partisan, and that was only confirmed more strongly 
just a couple of weeks ago when he went before the Judiciary Committee 
again. That is issue No. 1.
  If any of you out there are now dealing with cancer, diabetes, heart 
disease, or other life-threatening illnesses, understand that 
Republicans in a number of States in this country are trying to get the 
U.S. Supreme Court to rule that major parts of the Affordable Care Act 
are unconstitutional, including the protection for people who have 
preexisting conditions. If you are struggling with diabetes, cancer, 
heart disease, serious illness, worry, and worry a lot, about what Mr. 
Kavanaugh will do with the other four members of the hard right in 
taking away your ability to get the healthcare you desperately need at 
an affordable cost.
  If you are a woman or, in fact, a man or, in fact, 70 percent of the 
American people who believe a woman has the right to control her own 
body and you don't want to see Roe v. Wade overturned--and that is the 
last poll I saw, 70 percent of the American people holding that 
opinion--worry, and worry a lot, because I fear very much if a case--
and we think a case may come before the Supreme Court on Roe v. Wade--
worry about what Kavanaugh will do with the other four rightwing 
members of the Court. That is issue No. 1.
  If Brett Kavanaugh were a choir boy, if he were one of the most 
wonderful human beings ever to walk the face of this Earth, based on 
his policies, based on his decisions, I would vote against him. It 
turns out that maybe he has not been a choir boy.
  I could only concur with my colleague from New Jersey, Senator 
Booker, in expressing what we are hearing in our own office. I come 
from a small State. Yet as a result of Dr. Ford's testimony, we have 
received comments from 11 Vermonters who relayed, to some degree, their 
stories about sexual assault. We received a letter from a woman who was 
70 years old, who told us about a horrific experience that happened to 
her when she was 14 years of age. While almost all of the comments that 
came in were from women, there were some from men who were abused as 
boys.
  Some 20 to 25 percent of women in this country have been sexually 
abused. Wow, that is a crisis. That is an epidemic. Clearly, our goal 
must be to do everything we can to make it easier for women to come 
forward with these terribly painful and life-lasting experiences, make 
it easier for them to speak their truth.
  It is hard to talk about President Trump and continue to use the word 
``unbelievable'' because things he does literally are unbelievable 
every other day, but I think maybe he might have hit a new low, even 
for Trump. Dr. Ford brought forth her testimony. I think the vast 
majority of the American people believed her. The President of the 
United States--the man who should be telling women we want to hear your 
truth, we want to hear your pain--this President, in the most vulgar 
way imaginable, actually mocked Dr. Ford. What kind of message does 
that send to women all across this country who are suffering? It sends 
the message that they will not be believed. They will be dismissed, and 
the most powerful person in this country will mock them. Even for a 
disgraceful President like Trump, this is, in fact, a new low.
  It is not even the policies I am quite convinced that Kavanaugh will 
pursue. It is not only the very serious and credible allegations 
regarding sexual assault that were in no way fully investigated by the 
FBI. I read the report, and it was a very limited report. It certainly 
did not do justice to Dr. Ford. The FBI agents did not even interview 
Dr. Ford or Judge Kavanaugh. I don't know how you have an investigation 
in which you don't interview the two major figures in that charge, that 
allegation.
  It is not only the lingering question that came from two--at least 
two--credible women, but it is also the very important question of 
Judge Kavanaugh's veracity, his honesty. I think I heard more than one 
Republican Member of this body say: Well, you know, if he is lying, he 
should not be seated on the U.S. Supreme Court.
  Yet there is, in fact, very strong evidence that the testimonies 
Judge Kavanaugh gave recently and in years past, when he was first 
appointed to a judgeship, were not honest. Let me give you a few 
examples. In his previous testimony before the Judiciary Committee, 
Judge Kavanaugh was asked more than 100 times if he knew about files 
stolen by Republican staffers from Judiciary Committee Democrats. 
Republican staffers stole files, and that was pretty clear. The 
question that was asked of Judge Kavanaugh was, in fact, had he seen 
those files; was he familiar with those files? The answer he gave was 
no, he was not familiar with those files.
  It turned out the emails released as part of these hearings show 
these files were regularly shared with Kavanaugh while he was on the 
White House staff. One of the emails, in fact, had the subject line 
``spying.''
  In 2006, Judge Kavanaugh told Congress he didn't know anything about 
the NSA warrantless wiretapping program prior to its being reported by 
the New York Times this year. An email revealed that while at the White 
House, he might have been involved in some conversations about that 
program. It sounds as though he was not telling the truth.
  In 2004, Judge Kavanaugh testified that the nomination of William 
Pryor to the Eleventh Circuit Court was not one that ``I worked on 
personally.'' It turns out that may not have been true as well.
  In 2006, Judge Kavanaugh testified: ``I was not involved and am not 
involved in the questions about the rules governing detention of 
combatants.'' New evidence released that is part of these confirmation 
hearings suggests that statement may not have been true.
  Judge Kavanaugh repeatedly said that he did not have a serious 
drinking problem, that he had never blacked out, never acted in a 
belligerent way. There are a number of his classmates who suggest 
otherwise. In fact, there is a piece in the Washington Post today, 
signed by three of his classmates, I believe, at Yale who suggested the 
very opposite. Are they lying? Are these people coming forward into the 
public eye to be abused? Are they lying or, in fact, is Judge Kavanaugh 
not tell the truth?
  Judge Kavanaugh testified he treated women ``as friends and equals'' 
and ``with ``dignity and respect.'' Numerous entries in his school 
yearbook would seem to contradict this.
  The issue is not just what he did; the issue is that he is not 
telling the truth about what he did. Judge Kavanaugh was not the only 
person in America to drink a lot in high school and in college, not the 
only one. If he had come forward and said ``Yeah, you know, I did have 
a drinking problem; I have overcome it, but I did,'' that would have 
been perhaps telling the truth, but that is not what he said.
  On it goes. It is likely, as I understand it, that those of us who 
are opposed to Judge Kavanaugh will, in fact, be on the losing side of 
that vote tomorrow. I am very sorry about that.
  History has a funny way of responding to what goes on. I think this 
nomination, to a much greater degree than I think anyone would have 
expected, has aroused the American people from coast to coast. It has 
aroused them in terms of the issue of sexual assault and whether we 
deal with that issue honestly. It has aroused the American people in 
terms of the issue of veracity

[[Page S6610]]

and whether or not we are going to have a member on the Supreme Court 
who, in fact, is honest. It has aroused the American people in 
understanding that the function of the U.S. Supreme Court is to render 
justice with impartiality, with justice for all--not to simply 
represent the wealthy and the powerful and billionaire campaign 
contributors.

  So I think this whole process has been an enormous learning 
experience for the American people. While we may lose tomorrow, I think 
the end result of what has taken place here--the disgrace of what has 
taken place here--will reverberate in a very positive way for the 
American people.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, as a U.S. Senator and a member of the 
Judiciary Committee, giving careful consideration to Supreme Court 
nominations is among my most important responsibilities. These lifetime 
appointments can change not only the course of the Nation but the 
course of lives.
  I began with deep concerns about Judge Kavanaugh: his unfettered 
views of executive power, effectively believing that the President is 
beyond the law; his refusal to commit to well-established precedents on 
critical issues, like women's constitutional rights regarding abortion; 
his affinity for unlimited and dark political money and his studious 
blindness to its harm to our democracy; and his very selection and 
support by big special interest groups. I had significant concerns 
about his truthfulness and temperament--concerns proven more than 
justified over the course of these hearings.
  Another warning sign was flashing. Senate Republicans were stopping 
at nothing to get this nominee through. Why, it made we wonder. Why?
  Behind all of the shattered norms and traditions of the Senate, 
behind all of the hidden documents and unanswered questions, stands the 
looming question: Why?
  In my opening comments in the committee, I chronicled a pattern under 
Chief Justice Roberts, an unpleasant pattern of 5-to-4 partisan rulings 
for the big corporate and special interests that are the lifeblood of 
the Republican Party--not 3 or 4 times, not even a dozen or two dozen 
times, but 73 times--73 times and all 5-to-4 partisan decisions, all 
wins for the big corporate and special interests that are the lifeblood 
of the Republican party--73 times.
  The pattern is clear in these 5-to-4 partisan decisions. Every time 
big corporate and Republican special interests are involved, the big 
interest wins--every time, 73 to 0.
  On its way to delivering these Republican special interest victories, 
the Roberts Court--or I should say the five of them who do this; call 
it the ``Roberts Five''--leaves a trail--a trail of wrecked precedents, 
a trail of sketchy, nonfactual fact-finding, a trail of longstanding 
statutes ignored or rewritten, and a trail of supposedly conservative 
judicial principles, like modesty, deference, originalism, and stare 
decisis, all violated. The pattern of these 73 partisan ``Roberts 
Five'' decisions explains why. It explains why big Republican interests 
want Kavanaugh on the Court so badly and why Republicans shredded so 
much Senate precedent to shove him through. The big Republican 
interests want to be able to pull 5-to-4 wins out of the U.S. Supreme 
Court as if it were a legislature they controlled.
  What are the areas of law where the big Republican corporate and 
special interests have a stake where the Roberts Five delivered for 
those big Republican Party stakeholders?
  Well, first, they helped Republicans to gerrymander elections in 
Vieth v. Jubelirer, 5 to 4. This was a big deal. It let Republicans 
gerrymander their way to control of Congress, to control of the House 
of Representatives, in a year Republicans lost by a million votes. They 
lost the House by a million votes and won it by gerrymandering.
  The Roberts Five has helped Republicans to keep minority voters away 
from the polls: Shelby County, 5 to 4; Bartlett v. Strickland, 5 to 4; 
Abbott v. Perez, 5 to 4. Making it harder to vote--harder for 
minorities or poor people or the elderly--is a Republican 
electioneering tactic, and Republican State legislatures went right to 
work, passing voter suppression laws right after these partisan 
decisions.
  The Roberts Five also helped to unleash big-money political 
influence, giving big interests unlimited power to buy elections and 
threaten and bully Congress. McCutcheon and Bullock and the infamous, 
grotesque 5-to-4 Citizens United decision were their tools.
  This is the sockdolager, the really big deal, by the way. There is a 
very small world of very big interests that have unlimited money to 
spend and a business strategy to spend it to influence politics. It is 
not a big group, but it is a powerful group, and it is the heart of the 
Republican funding machine. These few but big Republican interests were 
given unprecedented political artillery by the Roberts Five, at least 
unprecedented since Teddy Roosevelt cleaned house over a century ago.
  Our politics since Citizens United has been contorted and corrupted, 
but those big influences are, oh, so happy.
  What else do the big influencers want to get out of courtrooms?
  Big special interests that can muscle their way around Congress and 
capture executive agencies hate courtrooms. There is this annoying 
thing in courtrooms of being treated equally with regular people. There 
is this annoying thing in courtrooms about having to turn over your 
actual documents. There is this really annoying thing in courtrooms 
about having to tell the truth. So, bingo, the Roberts Five protected 
corporations from group class-action lawsuits--Walmart v. Dukes, 5 to 
4; Comcast, 5 to 4; Epic Systems, 5 to 4--and helped corporations to 
steer customers and workers away from courtrooms and into corporate 
friendly mandatory arbitration--Concepcion, Italian Colors, and Rent-a-
Center, all 5 to 4 at the hands of the Roberts Five.
  What else? Of course, to bust unions, a perennial Big Business 
special interest classic, kind of a golden oldie for big Republican 
influencers: Harris v. Quinn, 5 to 4; Janus v. AFSCME, 5 to 4.
  And, of course, to protect polluters. Big polluters pour big money 
into the Republican Party. They do this, they will tell you, to protect 
your freedom. They talk a lot about freedom. It turns out that it is 
your freedom to breath dirty air, drink dirty water, smell the river 
going by, eat chemicals with your food, and have climate havoc and acid 
oceans. It is all about freedom--indeed, the freedom for big polluters 
to pollute for free and get away with it. Right with them there is the 
Roberts Five over and over, for the polluters, even stopping the 
Nation's Clean Power Plan 5 to 4 for the coal industry.
  The list goes on. It totals 73 partisan 5-to-4 decisions under Chief 
Justice Roberts, each giving big wins to big Republican interests. It 
is an indelible pattern.
  Although the American people might not be keeping exact score--they 
might not know that the number is 73--they feel the Court is rigged, 
and the Court is flying all the warning flags of a captured agency, 
dancing to special interest tunes and rampaging through precedent and 
principle to get there.
  This pattern is a disaster for the Court, and I know Kavanaugh will 
contribute to that disaster.
  How do I know this? I know this because Kavanaugh's record tells me. 
That is why he is the nominee, after all. That is the why. He has been 
signaling the big influencers with over 50 speeches to the Federalist 
Society. I think he has the human record for speeches to the Federalist 
Society, signaling that he is their guy.
  And he has been signaling with his record as a judge on the DC 
Circuit Court of Appeals in the most controversial and salient civil 
cases, those decided by bare 2-to-1 majorities. When Kavanaugh was in 
the majority with another Republican-appointed judge, he voted to 
advance the far-right and corporate interests a striking 91 percent of 
the time. That is almost a perfect match for the Roberts Five majority 
rulings in 5-to-4 cases where these conservative groups show up.
  The Roberts Five gives conservative groups a 92-percent win rate. 
Kavanaugh gives conservative groups a 91-percent win rate. No wonder he 
is their guy.
  Ninety-one percent--remember that number.
  Kavanaugh reliably voted for polluters and for dark money and for 
corporate interests with a healthy dollop of anti-choice, pro-gun, 
religious-right

[[Page S6611]]

politics thrown in. Ninety-one percent is how he campaigned for this 
job.
  Big special interests have a habit of turning up regularly in 
appellate courtrooms like the DC Circuit. Their tool of influence is 
one of the worst policed tools of special-interest influence in 
America--the so-called amicus brief, where big special interests fund 
front groups to file these amicus briefs to instruct courts how they 
want the courts to rule.
  They are called amicus briefs because they are supposedly appearing 
as a friend of the court, but this has nothing to do with friendship. 
It is a scandal of secrecy, deception, and manipulation.
  How does this involve Kavanaugh? In cases where conservative groups 
weighed in with these amicus briefs before him, Judge Kavanaugh sided 
with them--wait for it--91 percent of the time--again, 91 percent. Call 
him ``Judge 91 percent,'' and you understand why those big interests 
want him so badly on the Supreme Court and why the Republican Party 
drove like drunk kids over the curbs and across the lawns, smashing 
mailboxes of procedure and propriety to get him there.
  The overlap between the groups in Kavanaugh's 91-percent club and the 
groups who fund Leonard Leo, the Federalist Society architect of 
Kavanaugh's nomination, is telling. The multimillion-dollar scorched-
earth ad campaign by groups like the Judicial Crisis Network is funded 
by big dark money interests.
  The NRA poured its own millions into campaigning for Kavanaugh. They 
promised NRA members that Kavanaugh would break the tie. They are 91 
percent sure.
  In the face of all this, Kavanaugh feigned impartiality, but then 
came the ``tell.'' When Kavanaugh returned to the Judiciary Committee 
to defend himself against accusations of a sex assault, his veneer of 
impartiality was pulled away, and we saw--America saw--the fierce and 
rabid conspiracy-mongering partisan within. His performance was 
recently described by a right-of-center columnist as his ``partisan, 
unhinged diatribe and nonjudicial demeanor.''
  Mr. President, I ask unanimous consent that the article from which I 
am quoting be appended to the end of my remarks.
  (Mr. LANKFORD assumed the Chair.) He even blamed Bill and Hillary 
Clinton--seriously.
  It shows where we are in this country that this display was not by 
itself disqualifying. But for the big special interests behind ``Judge 
91 Percent,'' this was not at all disqualifying. This was reassuring. 
This was great stuff. It just confirmed what they knew: Judge 91 
Percent would be their boy. The Roberts Five would get back in the 
saddle, and they would get 73 more 5-to-4 partisan victories.
  But that moment gave the rest of the country the opportunity to take 
true measure of a man who claims he is impartial--a man who asks the 
Senate to grant him a lifetime seat in judgment of others and claims he 
will judge fairly--fat chance.
  One longtime observer of the judiciary who was an early supporter of 
Kavanaugh recently withdrew his support. He wrote in the Atlantic 
magazine:

       I cannot condone the partisanship which was raw, 
     undisguised, naked, and conspiratorial from someone who asks 
     for public faith as a dispassionate and impartial judicial 
     actor. His performance was wholly inconsistent with the 
     conduct we should expect from a member of the judiciary.

  Extraordinarily, even former Supreme Court Justice Stevens has warned 
against Kavanaugh for the same reasons. Kavanaugh's raw, undisguised, 
naked, and conspiratorial partisan screed may have excited the donors, 
but it did nothing to address the concerns that had prompted the 
hearing in the first place. So in addition to an epic fail of any 
reasonable test of impartiality, Judge Kavanaugh still bears credible 
allegations of sexual assault levied against him.
  I will confess, I believe Dr. Blasey Ford. We have a big dispute 
here, but I do hope that in this Senate we at least can agree on one 
thing. If Dr. Blasey Ford's testimony was true, I hope we can all agree 
that Kavanaugh has no business on the Court.
  Well, I believed her then, and I believe her now, and I did not find 
him credible at all. I found him belligerent and aggressive--just as 
his Yale drinking buddies said he was while drunk in college--and 
evasive and nonresponsive.
  Dr. Ford's allegations were credible enough to get her here before 
the Senate. Her testimony here was quiet, open, and powerful. She was 
calm, composed, and utterly believable. Even President Trump called her 
testimony ``credible'' and ``compelling.'' So did many of my Republican 
colleagues.
  But then came the smear campaign to discredit and demean her, led by 
the President's sickening taunts and mockery in Mississippi. Then came 
the majority leader's criticisms. He knew it wouldn't do to say 
outright that she lied, but his every accusation fell to pieces if she 
was telling the truth. His attacks were a bank shot--a relentless, 
indirect bank-shot smear of Dr. Ford's credibility.
  One element of the smear of Dr. Blasey Ford was to describe her 
testimony as ``uncorroborated.'' We have heard that over and over. The 
majority leader said that again just this morning on the floor--
uncorroborated. Well, first, that just isn't true. Prior consistent 
statements are a well-known form of corroboration, and Dr. Ford's prior 
consistent statements are abundant. It is ironic to have Republicans 
complain about a lack of corroboration when Republicans did everything 
possible to prevent corroborating evidence from coming forward. It is 
deeply unfair to Dr. Ford to disallow, prevent, and freeze out 
corroborating evidence and then call her testimony uncorroborated, 
which bring us to the, to put it politely, abridged FBI investigation.
  First, the FBI background investigation was closed to this new 
evidence in an unprecedented break from the entire history of 
background investigations. Then, the investigation was limited by 
secret orders from the White House we still have not seen.
  What do we see? We see the dozens of credible, percipient, and 
corroborating witnesses who came forward to say that they couldn't get 
an interview from the FBI, who were never contacted when they made 
themselves known to the FBI.
  I ask unanimous consent that that two letters from the 
representatives of Ms. Ramirez and Dr. Ford explaining this be added at 
the end of my remarks.
  Mr. President, many witnesses were fobbed off into a black hole of a 
tip line--a tip line from which no tip appears ever to have been 
pursued, a tip line that was just a dumping ground for unwelcome 
evidence. As a U.S. attorney, had I received the set of witness 
summaries we saw, I would have sent the package back for more 
investigation.
  A sincere and thorough investigation designed to get at the truth 
would have broadly interviewed Kavanaugh and Blasey Ford's known 
contemporaries to probe their recollections.
  An investigation to get at the truth would have interviewed the 
witnesses who corroborated Dr. Blasey Ford's prior consistent 
statements.
  An investigation designed to get at the truth would have tested 
Kavanaugh's calendar and yearbook entries with contemporaneous 
witnesses.
  An investigation designed to get at the truth would have done 
interviews of witnesses who corroborate the incident alleged by Ms. 
Ramirez, like the classmate ``100 percent sure'' he was told at the 
time that Kavanaugh had exposed himself to Ramirez.
  An investigation designed to get at the truth would have interviewed 
people who recalled Kavanaugh's propensity to drink to excess and his 
behavior when drunk relevant to these incidents.
  An investigation designed to get at the truth would have certainly 
sought to interview the alleged victims, like Christine Blasey Ford and 
the accused perpetrator, Brett Kavanaugh.
  From public reporting, we know that none of this happened. It is 
difficult to escape the conclusion that like everything else in this 
nomination, such as hiding 90 percent of the records from the Bush 
White House days, putting bogus ``Executive Privilege'' cover over 
other documents, and claiming documents are ``committee confidential'' 
through a nonexistent process that was

[[Page S6612]]

partisan from start to finish--like everything else, it is hard to 
escape the conclusion that this investigation was designed not to get 
at the truth, but to step carefully around it.
  I am a huge fan of the FBI. I admire that organization immensely. It 
must have killed the agents to do such a half-baked and incomplete job 
because of marching orders from the White House. My heart goes out to 
the experienced FBI professionals hamstrung by the Trump White House 
through this investigation. They know better than anyone the holes in 
what they did, but in this matter they don't have the independence of a 
criminal investigation. The White House is the client. They must do 
what they are told. This was yet another Trump abuse of a proud 
American institution.
  So here we are.
  A defendant in a criminal prosecution enjoys a presumption of 
innocence until proven guilty. A defendant in a civil trial must be 
found culpable by a preponderance of the evidence. An executive agency 
must make decisions based on substantial evidence. But the question 
before us is none of those. The question before us is whether Brett 
Kavanaugh is a man with the character, credibility, impartiality, and 
temperament to sit in judgment on America's highest Court.

  We now know Brett Kavanaugh is not that. He is not close, and 
Americans know it. But the big Republican interest groups don't care 
because they see that 91 percent, and they yearn for 73 more 5-to-4 
partisan victories.
  Service to the law has at its heart an earnest pursuit of the truth. 
In Kavanaugh's pursuit of office, truth has too often not been his goal 
but his casualty. The history of falsehoods is well chronicled: denying 
that he worked on the nomination of the controversial Judge Pryor, 
denying that he knew of documents stolen from Judiciary Committee 
Democrats when he was at the Bush White House, denying that he was 
involved in questions about the knowledge of the secret detention 
program or the warrantless wiretapping program, denying what he himself 
said about Presidential immunity from investigation, and complicit in 
the coverup of millions of documents we should have seen, and on and 
on.
  Once Dr. Blasey Ford and then Ms. Ramirez came forward with sexual 
assault allegations, the lies came fast and furiously--that he knew 
nothing about the Ramirez allegations until the ``New Yorker'' story 
was published; that he had no alcohol problem and never drank to the 
point of impairment of his memory; that he had unique definitions of 
phrases in common parlance he related to binge drinking and sex; that 
he ``always treated women with dignity and respect''; and that claiming 
himself as a girl's ``Alumnius'' was a sign of affection. As the woman 
herself retorted: ``There is nothing affectionate or respectful in 
bragging about making sexual conquests that never happened.''
  On they came, little lies and big lies about not having connections 
to get into Yale, about honoring grand jury secrecy while helping the 
Ken Starr investigation--none perhaps individually fatal but together 
adding up to a pattern of dissembling and prevarication. Even before 
Kavanaugh was nominated, Leader McConnell smelled trouble and urged the 
President not to nominate someone he knew was a badly flawed nominee 
with a lengthy paper trail that would likely disclose how extreme and 
partisan Judge Kavanaugh truly is.
  So much has been left by the wayside in the mad rush to jam this 
nomination through--documents, facts, Senate rules and traditions, real 
investigation, simple respect for truth--all smashed-up wreckage in the 
wake of this nomination. But as my fellow New Englander John Adams 
said, ``Facts are stubborn things.'' The truth has a way of coming out. 
The millions of hidden pages of Kavanaugh's White House records will 
come out. The nonassertion assertion of Executive privilege will fall 
or yield to time. The unheard witnesses will ultimately be heard, and 
others may come forward, which brings me back to the question I began 
with: Why all the wreckage? Why all the rush? Why all the damage? Why 
all the violation? The answer is in the numbers: 5 to 4, 73, and 91 
percent. At the end of the day, we go back to a Supreme Court far too 
often dancing to the tune of a handful of big Republican special 
interests. The record of this--the pattern of this--is undeniable. As I 
said, it will be a disaster for the Court, and Kavanaugh will eagerly 
contribute to that disaster.
  This whole mess has been a dark episode for the U.S. Senate, for the 
Supreme Court, for our image around the world, for our democracy. But 
there is one bright jewel that can be picked in the midst of all the 
filth and wreckage and lies; that is that something very special is 
happening out there. The testimony of Dr. Christine Blasey Ford of her 
assault at the hands of Brett Kavanaugh, though studiously ignored by 
so many Republicans and mocked by the President of the United States, 
has lit a fire.
  Just in my small State of Rhode Island, at least 10 women have 
written to me to share their own personal stories of survival of sexual 
assault. Like all of us, I get mail everyday about various policies 
that are being debated here in the Senate. I am coming up on 12 years, 
and I have never, never had mail like this. These women have come 
forward from widely different ages and backgrounds--college students 
and grandmothers--to tell their stories. Some have held these secrets 
close for years, even for decades. Several of these women gave me 
permission to share their words--words they have allowed me to free on 
the Senate floor after years of silence. What a privilege it is. What 
an honor for me to be trusted in this way by these remarkable women.
  Some were moved to tell their stories because they see their own 
fears reflected in Dr. Blasey Ford's brave testimony--the fear of not 
being believed, the fear of losing the respect of family or of friends. 
But they knew that Dr. Blasey Ford's memories were real, and they told 
me they wanted me to trust that Dr. Blasey Ford's memories were real 
because they knew that their own memories were real, because their own 
memories of their assaults were seared into their minds. One told me: 
``I am Dr. Ford.''
  A woman wrote to me:

       I am sure my rapist hasn't thought of me since that night 
     21 years ago either. In fact, he, like Kavanaugh, would 
     likely deny anything had ever happened. But here's the thing 
     about rape--the victims never forget.

  The coverage of Dr. Blasey Ford's appearance before the Senate for 
some stirred deep and disquieting emotions. As one woman wrote:

       The past few weeks have been doubly difficult with Dr. Ford 
     coming forward and all of the constant news threads and 
     social media threads. I have been triggered with nightmares, 
     fear of being alone, and emotionally wrecked. PTSD and 
     triggers are real. No matter how much therapy and time goes 
     by, one small statement or physical interaction can trigger 
     someone who has experienced a traumatic assault.

  One letter read:

       As a rape survivor (I was 19 years old--I am now 66 years 
     old), I want you to know that that experience does color the 
     rest of a person's life, informing decisions that you make, 
     where and how you go somewhere, how you raise your children 
     and relate to your husband and all other people. Sometimes 
     through the decades, you think about it consciously and on 
     purpose, and sometimes outside events can bring it back 
     without your willing it to be so.

  Dr. Blasey Ford's quietly compelling testimony has forced our Nation 
to face up to the tough questions about how women have been treated. 
The redemption, if there is one, for this foul nomination process is 
for us to grasp the power of this moment, for our country to act on the 
power of this moment. This is about far more than a troubled and 
troubling nominee. Something big is happening. Women across the 
country, like these extraordinary women in Rhode Island, are 
reconciling with their truth, fighting through a long and deeply unfair 
legacy of shame, fear, and stigma. They are stepping up. They are 
coming forward, determined, as one wrote to me to leave a different 
world for their daughters and granddaughters than the world that 
silenced them for years, for decades.
  For me, it is a true personal honor to share this moment with them, 
to be trusted with these long-held stories, to have the chance to help 
end that bitterly unfair legacy, and to support them toward that new 
and better world for their daughters and granddaughters.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

[[Page S6613]]

  


                [From The Washington Post, Oct. 5, 2018]

                   Is The Supreme Court Salvageable?

                          (By Jennifer Rubin)

       Judge Brett M. Kavanaugh's frantic op-ed in the Wall Street 
     Journal insisting that he is a fair, impartial judge--and 
     that we should disregard his partisan, unhinged diatribe and 
     nonjudicial demeanor during last week's Senate testimony--
     serves as some recognition that the partisan wars in which he 
     has taken up arms now threaten the legitimacy of the Supreme 
     Court. Other than denying a seat to an overt partisan such as 
     Kavanaugh, what can be done to recapture at least the 
     illusion that the high court is something more than another 
     blue-vs.-red battlefield?
       It helps to understand how we got here, how we got to the 
     point at which a Supreme Court nominee doesn't bother to 
     conceal his animosity toward an entire political party.
       The federal judiciary and the selection process for it were 
     not intended as expressions of representative democracy. We 
     didn't even directly elect senators who in turn confirmed 
     judges until the 17th Amendment. It wasn't intended to be an 
     expression of popular will. The expansion of judicial power 
     in the 20th century was a mixed blessing to be sure, serving 
     as both a last line of defense for individual rights against 
     a growing administrative state and an imperfect, sometimes 
     counterproductive tool for ameliorating deep social 
     conflicts. (As an aside, an unelected judiciary with vastly 
     expanded power used to be the right's nemesis; now it is a 
     political prize and a midterm election base-pleaser.)
       The high court certainly became a bone of contention for 
     the right during the tenure of Chief Justice Earl Warren, but 
     the nature of the justices and the institution itself changed 
     when our parties become more overtly ideological, with fewer 
     centrists. Still, matters were not dire for the court due to 
     a very undemocratic instrument--the filibuster. That required 
     some small degree of consensus for judicial confirmation and 
     bestowed greater legitimacy on the courts. A justice 
     acceptable to at least a small number of the opposition 
     party's members had to contain his or her partisanship; he or 
     she couldn't be a gladiator for one side or the other.
       Sen. Mitch McConnell (R-Ky.) decided that he had enough of 
     that. He envisioned the Supreme Court as simply another arena 
     for bare-knuckle brawls. Custom and comity went out the door. 
     He denied a mainstream liberal judge, Merrick Garland, so 
     much as a hearing. He did away with the filibuster for the 
     high court. Post Opinions contributing columnist Ron Klain, 
     speaking to the New Yorker, put it brilliantly: ``If 
     [Republicans] can, they will.''
       Republicans saw no need to release all of Kavanaugh's 
     records. What could Democrats do other than holler? They saw 
     no need to take Christine Blasey Ford's allegations seriously 
     (they'd ``plow right through,'' McConnell said). So what if 
     Democrats squawked? With impunity they could order an FBI 
     inquiry designed to hopscotch around problems for Kavanaugh 
     (e.g. his claims about drinking). Democrats didn't have the 
     votes to block him, and the GOP moderates could be counted on 
     to crumble. Hence we got a Supreme Court nominee pleading his 
     case on Fox News and the Wall Street Journal op-ed page.
       In some respect, the fix for the Supreme Court is the same 
     as the fix for our politics--leveling a right-wing populist 
     party that abhors democratic norms and building a center-left 
     to center-right coalition. (Some structural reforms such as 
     ranked voting, eliminating gerrymandering and automatic voter 
     registration would help.)
       In the near-term, the goal would be to depoliticize the 
     Supreme Court, reducing the vicious partisanship that 
     accompanies a lifetime appointment. A term limit of 12 to 15 
     years for justices and a 60-vote threshold seem increasingly 
     attractive. A constitutional amendment would be needed for 
     the former and probably for the latter (unless both sides 
     finally agree that losing the filibuster has been a 
     disaster). That's no easy task considering that an amendment 
     must be proposed by either a two-thirds vote by both houses 
     of Congress, or a call by two-thirds of the state 
     legislatures for a constitutional convention (a prospect so 
     alarming given the extremism and anti-democratic passions of 
     the day that it should be avoided at all costs). However, 
     given the right's former antipathy toward a powerful 
     executive and the left's recent experience in a hyper-
     politicized nomination process, it might be doable.
       The Supreme Court can do its part as well. It has resisted 
     adopting its own ethics rules, including guidelines for 
     recusal. That should end. Justices have become less reticent 
     about making public, political remarks. That should end as 
     well. Judges should eschew appearances before overtly 
     ideological groups. If they act more like judges of old, they 
     might recapture some of the luster the Supreme Court once 
     had.
       We've witnessed the destruction of a slew of executive 
     branch norms and the collapse of Congress (which is now a 
     partisan handmaiden to the president rather than a coequal 
     branch of government). If we let the court go to seed, we 
     will have pulled off a trifecta. But it's not an 
     accomplishment that any of us should seek.
                                  ____



                                  Katz, Marshall & Banks, llp,

                                  Washington, DC, October 4, 2018.
     Re Supplemental Background Investigation of Judge Brett M. 
         Kavanaugh--UPDATED

     Hon. Christopher A. Wray,
     Federal Bureau of Investigation.
       Dear Director Wray: As you are aware, the Federal Bureau of 
     Investigation failed to interview our client, Dr. Christine 
     Blasey Ford, in connection with its Supplemental Background 
     Investigation of Judge Brett M. Kavanaugh. It also declined 
     to interview witnesses whose names we provided to the FBI as 
     possessing information highly relevant to Dr. Ford's 
     allegations. We write to provide you with the names of 
     several of the witnesses we requested that the FBI interview 
     in connection with this matter. None were contacted nor, to 
     our knowledge, were more than a dozen other names we provided 
     to the FBI whose interviews would have challenged the 
     credibility of Judge Kavanaugh's testimony before the Senate 
     Committee on the Judiciary on September 27, 2018. They remain 
     available to talk with law enforcement.
       Jeremiah Hanafin:
       Mr. Hanafin is a former FBI agent and professional 
     polygraph examiner. He conducted Dr. Ford's polygraph 
     examination on August 7, 2018, and determined that Dr. Ford's 
     responses were not indicative of deception. Mr. Hanafin had 
     the data from the examination reviewed by four independent 
     reviewers, who all agreed with his conclusions. Mr. Hanafin 
     would be able to discuss the examination with the FBI, as 
     well as provide the polygraph examination data to the FBI for 
     its independent review. He also would have been able to 
     refute the false statements made in Rachel Mitchell's report 
     about Dr. Ford's mental state on the day of the examination.
       Russell Ford:
       As described in his sworn declaration provided to the 
     Judiciary Committee, in 2012 Dr. Ford told her husband and 
     their couples therapist that she was sexually assaulted by 
     Brett Kavanaugh when she was in high school. He can explain 
     how and why this issue arose in therapy. Mr. Ford has been 
     married to Dr. Ford since 2002 and can attest to her 
     character and credibility.
       Keith Koegler:
       As described in his sworn declaration provided to the 
     Judiciary Committee, Dr. Ford told Mr. Koegler in 2016 that 
     she was assault led by a man who was then (in 2016) a federal 
     judge. Shortly after Justice Anthony Kennedy's resignation 
     and prior to Judge Kavanaugh's nomination, Dr. Ford sent an 
     email to Mr. Koegler naming Judge Kavanaugh as her assailant. 
     Mr. Koegler has been close friends with Dr. Ford for over 
     five years and can attest to her character and credibility.
       Adela Gildo-Mazzon:
       As described in her sworn declaration provided to the 
     Judiciary Committee, in 2013 Dr. Ford told Ms. Gildo-Mazzon 
     that she was previously sexually assaulted by a man who was 
     then (in 2013) a federal judge. Ms. Gildo-Mazzon has been 
     friends with Dr. Ford for over ten years and can attest to 
     her character and credibility.
       Rebecca Olson:
       As described in her sworn declaration provided to the 
     Judiciary Committee, in 2017 Dr. Ford told Ms. Olson that she 
     was previously sexually assaulted by a man who was then (in 
     2017) a federal judge. Ms. Olson has been friends with Dr. 
     Ford for over six years and can attest to her character and 
     credibility.
       Kirsten Leimroth:
       In interviews with the media, Ms. Leimroth described a 
     lunch meeting with Dr. Ford and Jim Gensheimer at a beachside 
     restaurant with Dr. Ford in early July 2018, before Judge 
     Kavanaugh was nominated. At that meeting, Ms. Leimroth says 
     Dr. Ford named Judge Kavanaugh as her assailant and described 
     her fears about what would happen if her name and her 
     accusations against Judge Kavanaugh became public. Ms. 
     Leimroth is a family friend of Dr. Ford's and can attest to 
     her character and credibility. See https://
www.mercurynews.com/2018/09/17/metoo-spurred-christine-
blasey-ford-to-open-up-about-alleged-attack-year-before-
kavanaugh-nomination-friends-say/.
       Jim Gensheimer:
       In interviews with the media, Mr. Gensheimer described a 
     lunch meeting at a beachside restaurant with Dr. Ford and Ms. 
     Leimroth in early July 2018--the same meeting as the one 
     described by Ms. Leimroth--before Judge Kavanaugh was 
     nominated. At that meeting, Mr. Gensheimer says Dr. Ford 
     named Judge Kavanaugh as her assailant and described her 
     fears about what would happen if her name and her accusations 
     against Judge Kavanaugh became public. Mr. Gensheimer has 
     been friends with Dr. Ford for over eight years and can 
     attest to her character and credibility. See https://
www.mercurynews.com/2018/09/17/metoo-spurred-christine-
blasey-ford-to-open-up-about-alleged-attack-year-before-
kavanaugh-nomination-friends-say/; https://www.cnn.com/2018/
09/18/politics/kavanaugh-accuser-friend/index.html.
       Monica L. McLean:
       Ms. McLean has been friends with Dr. Ford for many years. A 
     letter released to the public on the night of October 2, 
     2018, apparently written by Brian Merrick, an ex-boyfriend of 
     Dr. Ford during her 20's, falsely claims that Dr. Ford helped 
     Ms. McLean prepare for a potential polygraph examination 
     sometime in the 1990's. Ms. McLean can attest to the falsity 
     of the claims contained in this letter, as well as the 
     character and credibility of Dr. Ford and that of the former 
     boyfriend.
       It has come to our attention that another person who 
     requested anonymity came forward to the FBI with information 
     highly relevant to Judge Kavanaugh's behavior in high

[[Page S6614]]

     school and was turned away. His sworn statement was published 
     on October 3, 2018 in the New Yorker: https://
www.newyorker.com/news/news-desk/will-the-fbi-ignore-
testimonies-from-kavanaughs-former-classmates.
       In addition, had the FBI interviewed Dr. Ford, she would 
     have provided her direct account of Judge Kavanaugh's assault 
     and answered any questions about it, including questions that 
     Ms. Mitchell and the Judiciary Committee members were 
     unwilling or unable to ask during the hearing. She would have 
     also provided corroborating evidence, including her medical 
     records and access to the phone from which she messaged The 
     Washington Post about Judge Kavanaugh's assault prior to his 
     nomination to the Supreme Court. The FBI could have also 
     asked her about her conversations with the witnesses 
     referenced above in order to establish those witnesses' 
     credibility. Such an interview would have played a crucial 
     role in providing the FBI with a full picture of all of the 
     facts involved in this important and serious matter.
       We were heartened on September 28, 2018, when Senators 
     Flake and Coons announced that the FBI would conduct a 
     supplemental background investigation. All those mentioned 
     above, and more, could easily have been interviewed in the 
     time allotted. It took tremendous courage for Dr. Ford to 
     come forward. As she testified before the Judiciary 
     Committee, she was eager to talk to the FBI. The 
     ``investigation'' conducted over the past five days is a 
     stain on the process, on the FBI and on our American ideal of 
     justice.
           Sincerely,
     Debra S. Katz,
     Lisa J. Banks,
     Michael R. Bromwich,
       Attorneys for Dr. Christine Blasey Ford.
                                  ____



                                           Kaiser Dillon pllc,

                                  Washington, DC, October 4, 2018.
     Hon. Christopher A. Wray,
     Director, Federal Bureau of Investigation,
     c/o Dana Boente, General Counsel.
       Dear Director Wray: My firm represents Deborah Ramirez, as 
     does the law firm of Hutchinson Black and Cook, LLC. As you 
     likely know, a reporter recently reached out to Ms. Ramirez 
     to ask about an incident involving Brett Kavanaugh, President 
     Trump's nominee for the United States Supreme Court. Ms. 
     Ramirez answered the reporter's questions, and he, after 
     interviewing a number of additional witnesses, wrote a story: 
     https://www.newyorker.com/news/news-desk/senate-democrats-
investigate-a-new-allegation-of-sexual-misconduct-from-the-
supreme-court-nominee-brett-kavanaughs-college-years-deborah-
 ramirez.
       As you likely also are aware, two of your agents met with 
     Ms. Ramirez this past Sunday, September 30, 2018, in 
     Colorado. Ms. Ramirez spoke with the agents for approximately 
     two hours, answering a host of detailed questions. Ms. 
     Ramirez offered credible and compelling information--as 
     everyone in the room would acknowledge.
       Later that day, Ms. Ramirez, through counsel, provided the 
     FBI with a list of more than twenty additional witnesses 
     likely to have relevant information. Ms. Ramirez suspected 
     that a number of those individuals could corroborate her 
     account of Mr. Kavanaugh's behavior.
       Fewer than four days later, however, the FBI apparently has 
     concluded its investigation--without permitting its agents to 
     investigate. We are deeply disappointed by this failure. We 
     can only conclude that the FBI--or those controlling its 
     investigation--did not want to learn the truth behind Ms. 
     Ramirez's allegations.
       We know this much, however: If your agents had been 
     permitted to investigate Ms. Ramirez's allegations, they 
     would have uncovered substantial corroboration. Just last 
     night, The New Yorker published a new article: https://
www.newyorker.com/news/news-desk/will-the-fbi-ignore-
testimonies-from-kavanaughs-former-classmates. That article 
     highlights Dr. Kenneth Appold, a professor at the Princeton 
     Theological Seminary. The article reports that, at the time 
     of the relevant incident, Dr. Appold was a Yale 
     undergraduate, a resident of the relevant dormitory (Lawrence 
     Hall), and a suitemate of Mr. Kavanaugh. The article further 
     reports that Dr. Appold has confirmed that, shortly after the 
     relevant incident occurred, he learned of it, including that 
     Ms. Ramirez was the victim and Mr. Kavanaugh the perpetrator. 
     Dr. Appold is one of the witnesses that Ms. Ramirez had 
     suggested that the FBI contact; the FBI never did.
       Dr. Appold apparently himself recounted this incident, 
     years ago, to another individual, Michael Wetstone. The New 
     Yorker article cited immediately above reports that Mr. 
     Wetstone has confirmed that Dr. Appold in fact relayed the 
     story in late 1980s or early 1990s. Mr. Wetstone is another 
     of the witnesses that Ms. Ramirez had suggested that the FBI 
     contact; the FBI apparently never did.
       If your agents had been permitted to investigate, they 
     would have uncovered still more corroboration:
       Dr. Richard Oh is an emergency room doctor in Santa Clara, 
     California. He attended Yale for his undergraduate studies, 
     between 1983 and 1987, i.e., at the same time as Ms. Ramirez 
     and Mr. Kavanaugh. He recalls, during his freshman year at 
     Yale, a female student ``emotionally reporting'' what can 
     only have been the same incident as described by Ms. Ramirez. 
     See Decl. of Dr. Richard Oh (Oct. 3, 2018), attached. Dr. Oh 
     is another of the witnesses that Ms. Ramirez had suggested 
     that the FBI contact; the FBI never did.
       There may be many additional witnesses who could offer 
     still further corroboration (if any additional corroboration 
     were needed, which it is not). But we likely never will know, 
     given that your agents were barred from investigating. What 
     we do know, despite that lack of investigation, is that 
     multiple witnesses have corroborated Ms. Ramirez's 
     allegations. Respectfully, your agents should have been 
     permitted to develop that information.
           Sincerely,
                                                  William Pittard.

  Mr. WHITEHOUSE. I yield the floor.
  The PRESIDING OFFICER (Mr. Rounds). The Senator from Maine.
  Mr. KING. Mr. President, first I want to congratulate and thank the 
Senator from Rhode Island for his moving and eloquent remarks--so 
moving and eloquent, in fact, that I contemplated foregoing my own.
  The Senator expressed the feelings of many of us, particularly in his 
closing, which was very powerful, and, I think, very well encapsulated 
the one possible positive result from this sorry process.
  I stated my opposition to Brett Kavanaugh's appointment to the U.S. 
Supreme Court before Dr. Ford's allegations became public--before I had 
ever heard about them, before anyone had ever heard about them, as far 
as I know, except some members of the Judiciary Committee.
  Therefore, I don't believe you have to believe Dr. Ford to conclude 
that Judge Kavanaugh should not be elevated to the Supreme Court--
first, because of his judicial philosophy.
  If you will pardon me, I want to digress for a moment into 
constitutional history--preconstitutional history, if you will. There 
is a basic paradox of government. We give power to something called the 
government in order to protect our security, to protect us as 
individuals, to protect our liberty. The paradox is that we then have 
to worry about the government to which we have given the power abusing 
us.
  James Madison captured this in the 51st Federalist:

       If men were angels, no government would be necessary. If 
     angels were to govern men, neither external nor internal 
     controls on government would be necessary. In framing a 
     government which is to be administered by men over men--

  And, of course, today Madison would say men and women over men and 
women--

       the great difficulty lies in this: you must first enable 
     the government to control the governed, and in the next place 
     oblige it to control itself.

  The Romans put it this way: ``Quis custodiet ipsos custodes.'' Who 
will guard the guardians?
  The other philosopher who talked about this was the English 
philosopher Lord Acton: ``All power corrupts and absolute power 
corrupts absolutely.''
  The American Constitution, in my view, is the most sublime answer to 
this ancient question of any instrument of government ever formed by 
people on this Earth. It is based upon a profound understanding of 
human nature: If you give people power, there is the potential for it 
to be abused--not the potential, the likelihood that it will be abused.
  So the Constitution is an elaborate scheme for preventing that abuse. 
The first line of defense is the structure of the government itself. 
What Madison was talking about was obliging the government to control 
itself--this herky-jerky, complicated, Rube Goldberg device involving 
two Houses, checks and balances, the President, the veto, submitting 
treaties, two-thirds votes, advise and consent, and then the whole 
level of the State government and local government, the division of 
responsibilities between the governments, and enumerated powers. The 
Framers wanted it to be difficult for majorities to ride roughshod over 
minorities. They wanted it to be difficult to legislate, and they 
succeeded beyond their wildest dreams.
  It is a very difficult piece of machinery to bring into action, but 
even after the Framers had designed this elaborate structure 
specifically in the name of protecting the rights of the people, they 
weren't satisfied. They wanted to take another step, because going back 
to our other fundamental document, the Declaration of Independence 
talks about certain inalienable rights--life, liberty, and the pursuit 
of happiness--and that word ``inalienable'' isn't defined much. Not 
much attention is paid

[[Page S6615]]

to it. ``Inalienable'' means neither can you give it away nor can it be 
taken from you. To alienate is to give away or have it taken from you. 
That is what ``inalienable rights'' mean.
  Going back to when they said we have this elaborate structure that 
will be very complicated to operate, what if the majority makes this 
structure work in such a way that is amicable to the fundamental rights 
of people? The first thing Congress did was to adopt the Bill of 
Rights. The Bill of Rights is the second shield for us as individuals. 
I always thought of it as a force field around individuals that 
protects the basic rights, even if the government follows all of the 
procedures.
  Congress shall make no law abridging the freedom of speech, 
establishing religion, or controlling the free exercise thereof. Search 
and seizure must be reasonable. You don't have to give testimony 
against yourself. All of these rights in the Bill of Rights are 
designed to protect us as individuals from the government.
  The framers then had an interesting problem when they got to the Bill 
of Rights, and they listed the rights. Somebody--and I can't remember 
who it was right now--came up with the problem that if you list the 
rights, then people will later say: Well those rights are listed. 
Therefore, there aren't any other rights that can be protected. So they 
added the Ninth Amendment, which is one of the most unappreciated and 
undiscussed amendments to the Constitution. The Ninth Amendment says: 
``The enumeration in the Constitution of certain rights shall not be 
construed to deny or disparage others retained by the people.'' In 
other words, there are rights that exist--they recognize that--that 
aren't the ones listed that we all think of in the First through the 
Fifth Amendment--rights such as freedom of speech, the press, freedom 
from unreasonable searches, the right to bear arms. They were afraid 
they would appear too exclusive. So they passed as part of the Bill the 
Rights the Ninth Amendment.

  What does this have to do with Judge Kavanaugh? To understand Judge 
Kavanaugh's jurisprudence, what kind of judge he will be--by the way, 
that is what we are all doing here. This is an exercise in forecasting 
the future. What will this person decide? What kind of judge will they 
be? That involves things like demeanor and temperament, but it also 
involves judicial philosophy.
  To understand the judicial philosophy of Judge Kavanaugh, you have to 
understand the judicial philosophy of Justice William Rehnquist. Judge 
Kavanaugh has characterized Justice Rehnquist as his judicial hero. He 
gave a speech about him in 2017. He says that the article in the Texas 
Law Review in 1976 written by Justice Rehnquist is one of the most 
important legal documents ever written.
  What do Justice Rehnquist and Justice Kavanaugh have in common? They 
have a very expansive view of what States can do to limit your rights 
and a narrow view of what the Federal Government can do to protect your 
health, welfare, the environment--you name it.
  Justice Rehnquist voted against Roe v. Wade. Justice Rehnquist 
criticized Griswold v. Connecticut. He voted against Roe v. Wade 
because he said the right of a woman to control her own reproductive 
health is not enumerated in the Constitution. Obviously, it is not 
listed in the first two or three Amendments, but the Court found that 
it was a basic human right of women, and that is the basis of Roe v. 
Wade.
  The problem with Justice Rehnquist's approach and Judge Kavanaugh's 
approach to unenumerated rights is that they say unenumerated rights 
could be recognized by the courts only if the asserted right was rooted 
in the Nation's history and tradition. That is called originalism, or 
it is a piece of originalism. In other words, you can't assert a right 
unless you can show that the Framers thought about it when they passed 
the amendments, or that it was somehow rooted in the tradition. If 
abortion was legal across the country in 1897 or 1867 or 1787, then you 
couldn't do it. The Court would be making law.
  The problem is that this approach freezes rights in history, and it 
allows no room for the evolution of ethics and morality. A good example 
is Loving v. Virginia, which is the case that overturned misogynation 
laws that made it illegal in many States in the country, including 
Virginia, at the time--and this was in the 1960s--for people of 
different races to marry one another.
  It is hard to argue using the Kavanaugh philosophy that that is a 
legitimate exercise of judicial authority because certainly, at the 
time of the passage of the Bill of Rights and the passage of the 14th 
Amendment, anti-misogynation laws were all over the place. So Rehnquist 
and Kavanaugh would say you can't do that. This isn't judicial 
lawmaking. This is judicial protection of individuals' rights from 
State incursion.
  In Griswold v. Connecticut, in many ways, Griswold was the case that 
said the State of Connecticut could not constitutionally prohibit the 
sale of contraception to married couples. It has been widely criticized 
in many ways. The Griswold case, I believe, was the founding document 
of the Federalist Society. It was in reaction to Griswold and the 
following cases that the Federalist Society arose in the 1980s.
  So this philosophy is that the States have wide latitude to restrict 
these rights--enumerated or not. That is why I believe there is--I 
don't know--a 50-50 chance, 60-40, or 70-30 that a Justice Kavanaugh 
would repeal Roe v. Wade. I give it 99 percent that he will gut Roe v. 
Wade. There are something like 15 cases headed for the Supreme Court 
right now from various States around the country where the right of a 
woman to control her reproductive future is under assault. The 
decisions may not be an outright repeal, but by piecemeal, chipping 
away at that right, making it harder and harder to exercise Roe v. 
Wade, it will be a hollow shell.
  Judge Kavanaugh said in his hearing: I am not going to make these 
value judgments, ideological judgments. I am going to call balls and 
strikes like an umpire.
  I have a new principle for judging Supreme Court nominees: Anybody 
who says all they are going to do is call balls and strikes is an 
automatic no because they are conning us. Deciding whether a particular 
rule in a State that restricts the ability of a woman to control her 
reproductive future is unduly burdensome is not a mechanical ball and 
strike. It is a value-laden judgment call. Don't tell me there is some 
easy ball-and-strike thing here. You are making judgment calls based 
upon values.
  I don't have any doubt that a Justice Kavanaugh is going to vote to 
restrict, to control, to limit, and ultimately, to gut Roe v. Wade. 
Indeed, that is what the President said he was going to do--to appoint 
a judge who was going to take that step. That is why he is so widely 
supported in some parts of the country.
  By the way, he said Roe v. Wade is a precedent. That is like saying 
this is a chair. That is a statement of fact. That is not a value. That 
is not a philosophy. That is just a statement of fact. Then he says: 
Well, we have Planned Parenthood v. Casey. So we have a precedent on a 
precedent. That is like saying this is a chair and this is a desk. That 
is a statement of fact. That is not anything that gives you any 
indication of what he says he is going to do.
  By the way, Justice Gorsuch sat in my office and talked to me about 
precedent and how committed he was to precedent. He had written a whole 
book about precedent. I don't think he was on the Court even a year, 
and he voted in the Janus case to absolutely trample 40 years of 
precedent in a very important area of American law. So when somebody 
tells me it is a precedent or it is settled law, that doesn't convince 
me of very much. That is not a predictor of what they will do.
  He has an expansive view of the State power to restrict individual 
rights. He has a narrow view of the national legislature's ability to 
protect individuals, whether it is healthcare, and I will give you 75 
percent that he is going to start voting to undercut and destroy the 
Affordable Care Act.
  In 16 out of 18 cases on the environment that came before his court, 
the DC Court of Appeals, he voted with the polluters. He narrowed the 
authority of the Environmental Protection Agency. In one case 
particularly relevant to my State, he decided against the right of the 
EPA to tell upwind States they had to control their pollution in order 
to benefit downwind States. Maine is in

[[Page S6616]]

the tailpipe of the Northeast. All the air moves from west to east and 
ends up in Maine. We could shut off every automobile and every factory 
in Maine and still have air pollution problems. Telling the EPA they 
can't regulate air that moves across State lines is a direct shot at 
the State of Maine.
  As for campaign finance reform, I predict he will join with the 5-to-
4 majority to continue the deregulation of campaign finance, one of the 
most serious issues facing this country.
  He even said that net neutrality was unconstitutional because of the 
right of large internet service providers to have free speech. That is 
a case that would deny free speech and freedom of activity to millions 
of internet users across the country. You don't have to believe Dr. 
Ford to oppose and believe that Brett Kavanaugh should not be elevated 
to the Supreme Court.
  You also don't have to believe Dr. Ford to believe that Brett 
Kavanaugh should not be elevated to the Supreme Court because of his 
views on Presidential power, but first let's establish what he said. In 
the Minnesota Law Review, he said we should not burden a sitting 
President with civil suits, criminal investigations, or criminal 
prosecutions. He has an elaborate argument about that involving 
impeachment and that the Congress should pass a statute and a whole lot 
of other things. We can argue about that. They are legitimate disputes 
about the meaning of article III and how it relates to impeachment and 
how it relates to the subject of the President being subject to 
criminal prosecutions. I understand that. I understand we can have 
those arguments, but once he stated that position, he should have 
announced that he would recuse himself from any case involving the 
President who appointed him--the first rule of the judicial canons.
  Canon No. 2 is that a judge shall avoid not only impropriety but the 
appearance of impropriety, and 2a, from the Code of Judicial 
Responsibility says that a ``judge should act at all times in a manner 
that promotes public confidence in the integrity and impartiality of 
the Judiciary. Let me read that again: ``A judge should act at all 
times in a manner that promotes public confidence in the integrity and 
impartiality of the Judiciary.'' The reason for that is obvious. The 
Judiciary doesn't have the power of the purse. It doesn't have an army. 
It has to rest on public confidence.
  He already violated that principle in his testimony to the Judiciary 
Committee last week. He violated that principle. Imagine the reaction 
of the public if a newly minted Justice Kavanaugh, within the next 
couple of years, votes in favor and, indeed, can provide the deciding 
vote, the swing vote, on a case involving the President who appointed 
him. I am not saying he can't take this position ever in his judicial 
career, but to have not recused himself when he had an opportunity to 
do so, to announce he would do so, to me, is disqualifying. It is 
obvious and mandatory that he should not take a position on a case 
coming before the Court involving the President who appointed him.
  No. 3, we don't have to believe Dr. Ford to conclude that Judge 
Kavanaugh should not be confirmed to a lifetime job because we have 
been denied the ability to learn about his record.
  Imagine, Mr. President, you are doing a job interview for a very 
important job in your company, and a guy comes in and says: I would 
like this job, and I am going to show you 10 percent of my work 
product. The 10 percent that I am going to give you is going to be 
picked out by an old buddy of mine whom I used to work for. In fact, he 
used to work for me. Oh, and by the way, once you hire me, you can 
never fire me; I am there for life.
  Nobody would take that deal. Any employer in America would laugh at 
that job applicant. Yet that is exactly what we are doing here this 
week. We have seen 10 percent of his record in the White House and have 
been given no reason whatsoever why we can't see it all. People talk 
about, oh, we have seen 100,000 pages or 200,000 pages. That is not the 
point. He has a huge record, so the number of pages isn't the issue; it 
is how much of it we have seen as a percentage, and we have seen 10 
percent of it.
  If I were on the side of this case preparing to vote for this 
gentleman, I would be terrified about what is going to come out because 
it is all going to come out. The records of the Bush administration are 
going to be available in 2020 under the Presidential Records Act--12 
years from the end of the administration. In 2020, all of these records 
will come out. In fact, I think they are going to start coming out in 
the next couple of weeks from the National Archives. I don't know what 
is in those records. There may be nothing. The fact that they are being 
withheld raises my main suspicions. Are they worried that something is 
in there that will derail this nomination, or do they know it?
  Asking us to vote on this lifetime appointment, with no do-overs, no 
amendments, no chances, no repeals, when we haven't seen the entire 
record, is beyond me. There is no justification for it.
  Even if I were inclined to vote yes, I would say: Wait a minute. You 
can't ask me to vote for this until I see all his records.
  We haven't done it. It is ridiculous. There is no other word for it.
  No. 4, we don't have to believe Dr. Ford to conclude Judge Kavanaugh 
should not be elevated to the Supreme Court because he has demonstrated 
he lacks the temperament and demeanor to be a Justice of the Supreme 
Court.
  First, I think it is only fair to state the standard. What should be 
the standard for temperament and demeanor for a judge? Here is the 
standard, as I have seen it:

       To be a good judge and a good umpire, it's important to 
     have the proper demeanor. Really important, I think. To walk 
     in the others' shoes, whether it be the other litigants, the 
     litigants in the case, the other judges. To understand them. 
     To keep our emotions in check. To be calm amidst the storm. 
     On the bench, to put it in the vernacular, don't be a jerk.

  This isn't me; this is the standard published to show and help 
display that you are trying to make the decision impartially and 
dispassionately, based on the law and not based on your emotions. Who 
established that standard? Who wrote it? Brett Kavanaugh. Those are his 
words from a speech several years ago at Catholic University. Proper 
demeanor. Calm amidst the storm. On the bench, don't be a jerk. Help 
display that you are trying to make the decision impartially and 
dispassionately based on the law and not based on your emotions. I 
don't see how anybody, with a straight face, can argue that Brett 
Kavanaugh met that standard last Thursday afternoon.
  I had an interesting experience that day. I was in a hearing in the 
afternoon while he was speaking, and there was a television screen in 
the hearing room, but the sound was off because we were doing other 
committee work. Every now and then, I could look at the screen, and I 
could see him. I turned to the person sitting behind me and said: He is 
coming unhinged. What is going on? What is he saying? He is shouting.
  You could see it. You could see his face contorted. Then, of course, 
I saw what he was saying. No one could argue that he demonstrated 
judicial demeanor in that hearing. In fact, something like 3,000 law 
professors, including 40 from Yale, have come out and said that based 
on that performance, he should not be confirmed to the Supreme Court. 
Justice John Paul Stevens, a retired Justice, in an extraordinary 
moment, said: This man should not be confirmed for the Supreme Court.
  If you were from Mars, Mr. President, or from South Dakota and you 
knew nothing about the history of this matter, you knew nothing about 
the documents, the opinions, the philosophy, none of those things, and 
all you saw was that hearing that afternoon, you would say: This guy 
has no business anywhere near a courtroom.
  His defense is, I was angry. I was being charged with something. My 
family is being threatened, and I am being threatened.
  I understand that. All of us have thought about how we would feel if 
some unjust or untrue charge were made against us, whatever the nature, 
and a particularly heinous charge was made against him. I understand 
that he was passionate. But here is what really bothers me: What he 
said--the conspiracy, the direct insults to the Democratic Senators, 
the idea that he was a victim of a smear campaign--he had written down. 
That wasn't a spontaneous outburst--that he was so mad

[[Page S6617]]

and caught up in the moment and said something he regretted--it was in 
written testimony. He had written it down, his answers to the 
questions.
  Back to canon No. 2, avoid anything that would undermine confidence 
in the judiciary. He actually said, looking at the Democrats, ``What 
goes around comes around.'' Everybody knows that is a threat. He was 
looking at Richard Blumenthal, who is the plaintiff in a case called 
Blumenthal v. Trump, which is in the Federal district court in 
Washington and will eventually make its way to the Supreme Court based 
on the emoluments clause. How can Richard Blumenthal possibly believe 
he would get a fair and impartial hearing from somebody who said: 
``What goes around comes around''? That phrase itself should be 
disqualifying. Anybody who talks about a political party or a group of 
people or millions of people or anybody else and says ``What goes 
around comes around''--that is disqualifying.
  I think that based upon judicial philosophy, his failure to recuse 
himself from issues involving the President who appointed him--his 
refusal to say he will recuse himself in issues involving the President 
who appointed him, the incredible lack of documentation based upon his 
record, and his demeanor last week disqualify him.
  No, you don't have to believe Dr. Ford to conclude, as I have, that 
Judge Kavanaugh should not be elevated to the Supreme Court.
  Before I close, I should add one note: I do believe Dr. Ford.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Ms. DUCKWORTH. Mr. President, as I begin speaking tonight, we are 
less than 24 hours away from handing a seat on the Supreme Court to a 
man credibly accused of sexual assault--a lifetime appointment that 
would give him immense power to determine the right of every American 
to access healthcare, to start or grow a family, or even have access to 
what the Founders called the inalienable rights of life, liberty, and 
the pursuit of happiness.
  From the beginning, this nomination process has been a sham. The 
confirmation hearing was rushed. Bush- and Trump-era Republicans worked 
shoulder to shoulder to ensure that thousands of documents never saw 
the light of day. Questions about Kavanaugh's seeming habit of 
perjuring himself only grew by the day. That was all before Dr. 
Christine Blasey Ford stood up and spoke out, before she took a deep 
breath and began to relive the worst moment of her life over and over 
again on the national stage, credibly accusing Brett Kavanaugh of 
pinning her down, covering her mouth, and changing her life forever.
  Now, even after she has testified about the night she was nearly 
raped, even after she talked of the memories indelibly etched into her 
mind and her 100 percent certainty that it was Brett Kavanaugh that 
night, some on the other side of the aisle have prioritized partisan 
tribalism over justice, over truth--two of the pillars that supposedly 
define our Supreme Court.
  How can the FBI investigation be considered anything but a GOP-led 
sham when Dr. Ford was not even interviewed, when Mr. Kavanaugh himself 
wasn't even questioned or the dozen-plus people Dr. Ford and Deborah 
Ramirez have said could help collaborate their stories?
  Why the rush? What are the Republicans afraid of? If they are so 
convinced that their nominee is not a serial sexual assaulter, why have 
they done everything in their power to curb and hinder investigations 
into the incidents in question?
  The Republicans who angrily claimed on TV yesterday that this 
nomination is taking too long, that the Democrats are obstructing for 
the sake of obstructing, are literally the same people who delayed the 
consideration of Merrick Garland's nomination for 293 days simply 
because he was nominated by President Obama.
  For the chairman to claim that this nomination has gone on longer 
than the ``average'' Supreme Court nomination ignores the reality that 
their nominee, who has been credibly accused of multiple sexual 
assaults, is being jammed through at lightning speed compared to the 
only other nomination he has ever overseen as chairman--Merrick 
Garland.
  To Leader McConnell, Chairman Grassley, and my Republican colleagues, 
I warn you, history has its eyes on you. I beg you to slow down and 
consider the stakes of this debate.
  Like Neil Gorsuch just a year ago, there are countless other 
conservatives scattered throughout the Federal judiciary who could be 
confirmed instead of Judge Kavanaugh, potential nominees with zero 
credible allegations of sexual assault, who are willing to release 
their records, who are capable of demonstrating the thoughtful, careful 
temperament we should demand from any possible Supreme Court Justice.
  As a nominee, Kavanaugh brought his confirmation hearings two things: 
his record and his character. His record revealed that he would eagerly 
be the deciding vote in cases that would take away a woman's right to 
make her own healthcare decisions, tear healthcare away from millions 
of Americans with preexisting conditions, and even empower this 
President to act as though he were above the law.
  Equally important, his character can be summed up in just a few 
words: untruthful, dishonest, intemperate, and unfit to serve. Anyone 
who watched the Judiciary Committee hearing last Thursday should have 
serious, if not disqualifying, doubts about Brett Kavanaugh. He spewed 
out conspiracy theories about the Clintons, went on partisan rants, 
appearing belligerent and outraged that anyone would dare keep him from 
getting what he appears to feel entitled to. He shouted over Senators, 
attacked and insulted them personally, even pledged to exact revenge on 
his political adversaries.
  Only a man who has never served in harm's way would dare complain 
that tough questioning was equivalent to his enemies trying to ``blow 
him up.''
  Judge Kavanaugh, I have been on the receiving end of an RPG blast, so 
I can tell you that sitting in a fancy, air-conditioned hearing room 
with a nice glass of ice water for a few hours is nothing at all like 
being under attack in the desert and fearing for your life in the 
middle of a war zone.
  Over and over again, he told what seemed to be bald-faced lies. He 
lied about the meaning of his yearbook page, about whether he had any 
possible memory loss or had ever become aggressive while drinking, 
about what he knew at age 53 and what he did at age 17.

  Sadly, we shouldn't even be surprised. Kavanaugh has a habit of 
appearing to lie under oath. Over the years, he has dissembled and been 
dishonest under oath on a number of issues, including his role in 
developing the Bush administration's policies on torture.
  This consistent dishonesty, this disregard, even distaste for the 
truth should be disqualifying for any Supreme Court nominee, but my 
colleagues on the other side of the aisle are turning a blind eye, 
seemingly not bothered one bit by his dishonesty, much less the 
credible allegations of sexual assault against him.
  Today is the 1-year anniversary of the New Yorker's Harvey Weinstein 
story that broke open the #MeToo movement. Now, exactly 365 days later, 
we in the Senate are faced with a choice: Do we believe the survivors 
who come forward to tell their stories, or would we rather take the 
easy route, dismissing their claims as misguided or mixed up, as one of 
my colleagues put it, ignoring their claims, ignoring their pain?
  Well, I, for one, believe Dr. Ford and Deborah Ramirez. ``Courage'' 
is the word that comes to mind when I think of these women. They didn't 
ask for this burden. They did not want this spotlight or the death 
threats and fear that have come right along with it. They have put 
country before self and have spoken out anyway, knowing full well that 
some would vilify them for doing so.
  Take a moment to imagine what they have gone through. Imagine being a 
teenage girl alone and scared, outnumbered and overpowered and 
terrified. Imagine carrying that trauma with you every day for decades, 
then having to relive it in front of the entire country, and then being 
called a liar, having your life threatened, and being victimized all 
over again in the process.
  It now rests on the U.S. Senate to listen. We must set an example for 
the rest of the country and avoid repeating

[[Page S6618]]

the sins of confirmations past. We must condemn efforts to shame 
survivors even when--especially when it is the President himself doing 
the bullying.
  By refusing to confirm Brett Kavanaugh, we can send the message that 
victims of sexual assault matter, that their voices will be heard, and 
that seeking justice for these survivors is more important than the 
confirmation of any single individual. We can recognize the bravery it 
took for these women to speak out. Doing so would make clear that, at 
least in the U.S. Senate, if not in the White House, time is truly up 
for any judicial nominee credibly accused of sexual assault. Doing so 
would at least begin to restore integrity to how the Senate carries out 
its constitutional responsibility to provide advice and consent.
  To any of my colleagues considering voting yes on this nominee, 
please take just a few minutes to listen again to the opening words of 
Dr. Ford last Thursday. Hear the pain in her words, the truth in her 
voice.
  I will be voting no on Judge Kavanaugh's nomination. On behalf of Dr. 
Ford and survivors everywhere, I am begging--begging--each of my 
colleagues to do the same.

  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Ms. HASSAN. Mr. President, I rise to join Senator Duckworth and 
Senator King and so many of my colleagues in opposing Judge Brett 
Kavanaugh's nomination to the Supreme Court.
  One of the most solemn responsibilities of a U.S. Senator is 
providing advice and consent upon the President's nominating an 
individual to the Supreme Court. This is a duty and a decision that I 
do not take lightly. This is a lifetime appointment to the highest 
Court in our land, which will impact the lives of every single person 
in this country.
  Supreme Court Justice is not a position that any person is entitled 
to. Any individual nominated to the Court must be subject to security 
on the totality of their record, their temperament, and their past 
actions.
  Yet, throughout the process of this nomination, my colleagues in the 
majority have made clear that they will stop at nothing to get Judge 
Kavanaugh on the Court, no matter his record, no matter his 
temperament, no matter his character.
  When Dr. Christine Blasey Ford's serious and credible allegations 
came to light, we saw a truly disturbing scene from both Judge 
Kavanaugh and my colleagues on the other side of this aisle. Judge 
Kavanaugh himself lashed out, claiming a political conspiracy against 
him, refusing to answer questions, and seemingly threatening those who 
raised serious, good-faith questions about his fitness. He said these 
words: ``What goes around, comes around.'' His behavior and his words 
reflected a partisan who sees those with whom he differs as enemies, 
not opponents.
  While many of my colleagues in the majority praise Dr. Ford's bravery 
in sharing her story, and even agreed that her testimony was credible, 
they blocked any serious professional attempt to get to the facts.
  I want to take a minute here to address one of the most disingenuous 
claims I have heard from the majority when it talks about Dr. Blasey 
Ford.
  Over the last week, Members on the other side of the aisle have 
expressed concern and regret that Dr. Blasey Ford's letter outlining 
her allegations was leaked, forcing her story into public view. But the 
fact that Dr. Blasey Ford didn't choose if and when to reveal her 
allegation to the public does not relieve the U.S. Senate of its duty 
to pursue the truth or to treat Dr. Blasey Ford with the respect and 
compassion the majority says it feels for her, something it could 
simply demonstrate by acceding to her request for what normally happens 
after a report of sexual assault: a full investigation before the 
hearing.
  I, too, will note that I watched and listened to Dr. Blasey Ford's 
testimony. I considered the additional evidence that would have 
particular weight in a court of law of her corroborating statements 
well prior to any suggestion that Brett Kavanaugh would ever be 
nominated to the Supreme Court of the United States. I compared her 
testimony to that of Judge Kavanaugh, and I believe Dr. Blasey Ford.
  Even though the committee rejected the doctor's request for an 
investigation prior to the hearing, which would have been normal 
course, which would have produced a much more meaningful and insightful 
and fact-based hearing, I was hopeful when it was announced last week 
that the nomination process would be paused for the FBI to investigate 
Dr. Blasey Ford's allegations. I was so hopeful that there would be a 
thorough, intensive process in order to get to the truth.
  But after reading the FBI report that was presented to Senators, it 
is clear that the FBI was not allowed to conduct a serious 
investigation.
  I am an attorney, and I have to say that any good attorney allowed to 
read the FBI's supplemental background investigation--what we have been 
calling the report here--would tell you that it is not the type of 
comprehensive investigation that could lead to the truth. The limited 
scope of the investigation produced a sham.
  Let me be clear. Nothing in the FBI report exonerated Judge 
Kavanaugh. It wasn't comprehensive enough to prove or disprove Dr. 
Blasey Ford's allegations or Judge Kavanaugh's denials. It was clearly 
designed just to provide cover so that the majority could vote yes and 
jam this nomination through.
  Even before Dr. Ford bravely stepped forward with her allegations of 
sexual assault, I had concluded that Judge Kavanaugh's nomination 
should not go forward, that Judge Kavanaugh did not belong on the 
Supreme Court of the United States.
  Having reviewed his record and hearing his testimony before the 
Senate Judiciary Committee, it is evident that he does not have the 
impartiality that is required to serve on the Supreme Court. His record 
shows that he is a partisan who promotes a partisan rightwing ideology 
deeply at odds with the will of the American people.
  On issue after issue, Judge Kavanaugh has promoted a judicial 
philosophy that diminishes the rights of individuals, particularly 
women, and puts corporations before people.
  On healthcare, Judge Kavanaugh's agenda has been clear. As recently 
as October 2017, Judge Kavanaugh criticized Chief Justice Roberts' 
decision to uphold the Affordable Care Act. In his confirmation 
hearing, Judge Kavanaugh would not commit to upholding protections for 
people who have preexisting conditions, such as asthma, cancer, 
diabetes, and more.
  The Trump administration and the majority in Congress have been 
relentless in their attempts to sabotage our healthcare system, 
underscoring the need to have a Supreme Court that would rise above 
partisanship, but Judge Kavanaugh will not do that.
  On the issue of reproductive rights and a woman's right to chart her 
own destiny, Judge Kavanaugh has repeatedly tried to dodge and mislead, 
but none of his judicial opinions or comments indicate that he believes 
Roe v. Wade was rightly decided or that he would respect Roe's 
precedent if he had the opportunity to do so.
  With Judge Kavanaugh on the Bench, Roe and the personal, economic, 
and reproductive freedom that it has delivered to women is directly 
threatened.
  When it comes to checks and balances on the President's power, Judge 
Kavanaugh's record and opinions are also extremely concerning, 
particularly given that a clear pattern of criminality continues to 
emerge from the Mueller investigation.
  Judge Kavanaugh has a history of supporting an unchecked Presidency. 
He has written that Presidents should be essentially above the law by 
claiming that they should not be the subject of civil lawsuits, 
criminal prosecutions, or even criminal investigations.
  During his hearing, Judge Kavanaugh refused to commit to recusing 
himself from matters involving investigations of the very President who 
nominated him. Especially at a time like this, it is too dangerous to 
place a Justice on the Supreme Court who believes in virtually no 
checks on a President's power, but it appears that the majority is 
committed to doing just that.
  This nomination has been an outrage, and the way it has been handled 
is a failure of this institution. The majority has put the interests of 
its party and a nominee who has made clear he will serve those 
interests before the interests of the court and the country.

[[Page S6619]]

The nominee, who will apparently--given today's developments--be 
confirmed tomorrow, is without the character or temperament needed to 
serve on the Supreme Court without the credibility that the American 
people deserve. He is, in fact, the antithesis of that impartial 
arbiter that a Supreme Court Justice has to be.
  The people of New Hampshire deserve better. The people of the United 
States of America deserve better. That is why I will be voting no on 
Brett Kavanaugh's nomination tomorrow, and I would urge all my 
colleagues on both sides of the aisle to do the same.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. LEE. Mr. President, I come before this body this evening after 
having heard several remarks from a number of my distinguished 
colleagues, whom I like, whom I respect, whom I admire, and with whom I 
greatly and substantially disagree on many matters discussed tonight.
  Just in the last little while I have heard arguments presented first 
by the Senator from Maine, a good friend of mine, who made some 
arguments that he put into roughly four categories. He opposes Judge 
Kavanaugh on the basis of judicial philosophy, on the basis of his 
refusal to agree anticipatorily to certain types of recusals, to the 
absence of documentation he claims was available to the committee, and 
to Judge Kavanaugh on issues of demeanor. I would like to address each 
of these allegations in turn.
  First, with regard to judicial philosophy, my friend from Maine--who 
truly is a friend--explained that, in his view, Judge Kavanaugh was 
unacceptable because, among other things, he counts among those he 
admires, among his judicial role models, the late William Rehnquist, 
Chief Justice of the United States. The reason that is apparently a bad 
thing, according to my colleague from Maine, is that this somehow 
indicates that he would view himself sort of as an umpire, calling the 
balls and the strikes, reading the law on the basis of what it says 
rather than on the basis of what he or anyone else might wish were the 
law.
  Jurists, you see, are not philosopher kings, not even when they get 
onto the Supreme Court of the United States. They are not there to 
impose will but judgment.
  You see, as Alexander Hamilton explained in Federalist 78, there is a 
difference between the type of government activity that goes on in the 
judiciary and the type of government activity that goes on in the 
legislative branch. In the judiciary, they exercise judgment; that is, 
they read the law. They figure out what the law says. When two or more 
parties come before the court's proper jurisdiction, they interpret the 
law on the basis of what the law says. That, Hamilton explains, is 
judgment.
  Will, on the other hand, is deciding what the law should say, what 
policies are best for the U.S. Government. That is the prerogative of 
this branch. That is the prerogative of the political arms of the 
Federal Government. That is not the prerogative of our friends across 
the street who wear black robes.
  So I was surprised to hear that my colleague from Maine, the junior 
Senator from Maine, Mr. King, was saying that he objects to the 
judicial philosophy of Judge Kavanaugh on the basis that he says he 
would call the balls and strikes as he sees them. It seems to me that 
this is the essence of what Federalist 78 was talking about, about the 
difference between will and judgment.
  Hamilton explained that if ever the judiciary started exercising will 
instead of judgment, it would upend the entire constitutional order. 
That, we cannot have. That is not how it should be.
  Next my colleague from Maine went on to explain that Judge 
Kavanaugh's association with the Federalist Society was somehow a 
problem, that the Federalist Society is somehow some sort of demonic 
conspiracy to overthrow the U.S. Government--or something to that 
effect. I embellished slightly his characterization of it, but you 
would think from what some of my colleagues say about the Federalist 
Society that there is something terribly wrong with it. Let me tell you 
about the Federalist Society.
  I have been aware of the Federalist Society for most of my life. I 
attended my first Federalist Society event while I was still in high 
school. I mean, what teenager doesn't want to attend a Federalist 
Society event at a nearby law school? That was something we considered 
to be a lot of fun in Provo, UT.
  At every Federalist Society event that I have ever attended, starting 
when I was in high school, all the way through college, through law 
school, throughout my career as an attorney, and since then in my 
career in politics, one thing has been consistent: The Federalist 
Society, when it puts on an event, allows for all sides to be 
represented. You will see views that are widely divergent. You have 
people, such as Nadine Strossen, former president of the American Civil 
Liberties Union, who have long been affiliated with the Federalist 
Society and participated in their symposium. This, you see, makes the 
Federalist Society rather unlike most American law school experiences, 
wherein one side is presented--not both. The Federalist Society prides 
itself in focusing on open, robust, honest debate.
  So if some people want to criticize the Federalist Society or those 
who, heaven forbid, have ever attended a Federalist Society event, what 
they are doing is criticizing academic freedom, criticizing a robust 
discussion of law and public policy. We should all be grateful for the 
Federalist Society for Law and Public Policy Studies. This is an 
enterprise that really represents the core of what the American people 
should value--certainly what those who study and admire and respect the 
law should value. This is not something people should be criticized for 
participating in. Last I checked, academic freedom and robust 
discussion of what the law says and which branch of government ought to 
exercise will and which ought to exercise judgment--that is something 
to be rewarded. That is part of America's bedrock. Its core 
institutions of civil society are people who are willing to come 
together, not under the auspices of government, not under the control 
of some bureau or bureaucracy, but rather on their own to discuss and 
debate things that will inure ultimately to the benefit of the people.
  Next, my colleague from Maine, Senator King, referred to Judge 
Kavanaugh's refusal to agree anticipatorily to a recusal in certain 
cases. As Judge Kavanaugh very capably explained in his hearing, this 
is not the kind of judgment a person makes before taking the Bench, 
before assuming a particular judicial office to which he or she has 
been nominated. It wouldn't be appropriate for him to anticipatorily 
agree to recuse himself in a type of case that he has even yet to see.
  I am not sure why some of my colleagues wanted to put him on the 
record as taking himself off of a certain broad category of cases, but 
that, nonetheless, seems to be what they were after. That, in most 
circumstances, is improper, just as it would be improper to get Judge 
Kavanaugh to agree in advance of his confirmation as to how he would 
vote in a particular type of case.
  This, too, many of my colleagues find troubling, by the way; yet 
this, too, is part of the canons of judicial ethics. We don't want 
people campaigning as if on political issues to get onto the Supreme 
Court of the United States. We will get back to that a little bit more 
later.
  Next, Senator King referred to the supposed lack of documentation 
from the Bush administration where Judge Kavanaugh worked--the lack of 
documentation, meaning the lack of documents coming out of the White 
House. It is important to know that Judge Kavanaugh doesn't own the 
documents in question. No, those are owned by the Bush administration. 
They own the privilege, and under the Presidential Records Act, which 
Congress itself has enacted, there are terms set. There are agents 
identified, agents who get to assert certain privileges and decide 
when, whether, and to what extent certain documents will be released 
and available for our review. I am not sure what it is that they are so 
terrified might be out there, but whatever it is, it is in a document 
that doesn't belong to us, a document to which we have no access, to 
which we have no rightful claim, but a document that in all events is 
not Judge Kavanaugh's call. It is not his call to decide what happens 
to those documents--when, whether, under

[[Page S6620]]

what circumstances we receive them. It is not his fault. It is not 
under his control. He has no say on that. Do not hold that on his head. 
That is not his burden.

  Then my colleague from Maine went on to address Judge Kavanaugh's 
demeanor. Senator King is not a member of the Judiciary Committee. I 
am. Senator King acknowledged to have viewed some of the hearings from 
a television while in other parts of the Capitol Complex, sometimes 
with the volume on, sometimes with it off. He said something to the 
effect that if he were watching from another planet, he would conclude 
that this man is not fit for office. Maybe he wasn't watching the same 
hearing I was, but I know one thing: Senator King wasn't in that room; 
I was. Let me tell you what I saw.
  I saw a man who has devoted most of his adult professional career to 
public service; a man who volunteers his time to feed the hungry, the 
homeless; who coaches his girls' basketball team, which he has done for 
a very long time; who teaches; and who supervises those whom he 
employs.
  His law clerks over the last 12 years--by the way, men and women of 
every background in the United States--rave about him, call him the 
kind of boss that every American would want to have, that every young 
lawyer would dream of working for, for the simple opportunity of 
learning under his tutelage, for the opportunity of serving in a 
judicial apprenticeship of sorts under a true master of the law.
  I don't know what Senator King was referring to, but he wasn't in 
that same hearing I was. He certainly didn't see the same thing I saw, 
which is someone who was seeking sincerely to defend his own record of 
public service and his own private conduct against great adversity, 
moreover, in circumstances in which he and his family have been dragged 
through the mud by no choice of their own.
  As to the suggestion that he was somehow leveling a threat when he 
uttered the words ``what goes around comes around,'' I was in that 
room. I understood that to mean one thing and one thing only, which is 
to say that when we mess with the process, that process might well 
remain messed up. That is all he meant. He was not making any threat. 
That was apparent to anyone watching that meeting with anything 
approaching an open mind. Anyone watching that with an open mind would 
have understood what that meant in context. He was simply stating the 
obvious: When we allow politics to come into play excessively in the 
process of naming and confirming people to the Supreme Court of the 
United States, it messes it up. It messes it up now and messes it up 
for the future. We should all be concerned about that.
  I also heard comments from my colleague, the distinguished junior 
Senator from Illinois. She said, among other things, that the 
investigation conducted into allegations involving Judge Kavanaugh were 
``a sham.'' A sham. Think about what that means. It means that she is 
suggesting that those investigating didn't want to get to the truth.
  I don't know what documents she has reviewed, but I can tell you the 
documents that I have reviewed. Those compiled by the Federal Bureau of 
Investigation and those compiled by the very faithful investigative 
staff on the Senate Judiciary Committee were thorough. We are talking 
about hundreds of pages of transcripts, to say nothing of the more than 
30 hours of testimony provided by Judge Kavanaugh himself before the 
Senate Judiciary Committee. We have been thorough in what we have gone 
through, and to call this a sham is simply disingenuous. It is 
inaccurate. It is inconsistent with anything I have seen.
  I heard my colleague from Illinois also refer to what she 
characterized as untrue statements made by Judge Kavanaugh in 
connection with Judge Kavanaugh's alleged participation in the 
development of the so-called torture policies in the Bush 
administration.
  As has been stated over and over again by Judge Kavanaugh and those 
who worked with him, he wasn't even cleared, didn't even have access to 
that program, was not involved in that program's creation. The 
documents to which they refer in claiming otherwise show only that he 
was asked about certain arguments that may be presented in court, which 
is completely different from the question they are talking about--
whether he had anything to do with the development, the design, the 
creation of that program, which he did not. So to say that he lied 
about that is completely dishonest, it is not borne out by the facts, 
and I find it shameful that this accusation would be made. It is 
completely contrary to the evidence.
  Next, my colleague from Illinois referred to concerns about what she 
referred to as healthcare outcomes--outcomes in particular cases 
involving healthcare. She went on to extol the virtues of the Patient 
Protection and Affordable Care Act, also known as ObamaCare, and spoke 
at length as if to suggest that Judge Kavanaugh were being considered 
not for a judicial position but a position involving lawmaking, policy-
setting. He has, after all, been nominated to a position of Associate 
Justice of the Supreme Court, not policymaker. His exercise of 
judgment, of interpreting the law based on what it says rather than on 
the basis of what he wishes it said, is his role. It is unfair to 
compare him to another standard.
  Moreover, if we are going to compare him to that standard, she has to 
acknowledge that when we are talking about the Affordable Care Act, he 
actually wrote an opinion upholding it. That is beside the point here, 
but if she is questioning his judgment and his ability to handle the 
law and apply the law on the basis of how he views the law and to do so 
objectively, she ought not to be concerned.
  If she is concerned about the outcome of cases relating to the 
Affordable Care Act--which I don't think she should be--as separate and 
apart from the judgment part of his role, then she ought to be consoled 
by the ruling that he made upholding the Patient Protection and 
Affordable Care Act.
  In any event, it is simply not fair to compare him to this standard 
and to say that because they fear--because my colleagues fear that he 
might reach a different policy outcome than she might prefer, she is 
attributing to him political views that he doesn't have, that he isn't 
allowed to have as a jurist, and that he has not expressed.
  If you can point to any one of his 300 written published opinions in 
the Federal reports, bring them to me--any one of those that suggest 
that he is incapable of being impartial in healthcare or in any other 
arena, please bring them to me. I would love to see them. Yet they 
can't, they won't, and they haven't, because such opinions do not 
exist. That is why they resorted to other things. That is why they are 
talking about policy. That is why they are trying to smear this man's 
character and destroy his good name, because they have looked through 
those opinions, and they can't find a dud among them.
  My colleague, the distinguished Senator from New Hampshire, also 
spoke. She regretted the fact that, in her view, there hadn't been a 
full investigation into the allegations against Judge Kavanaugh and 
suggested that additional evidence would have been helpful and that 
additional evidence exists corroborating the allegations made against 
him.
  Well, having reviewed hundreds and hundreds of pages of transcripts 
of interviews resulting from the FBI investigation and from our 
competent Judiciary Committee staff, I don't know what she is talking 
about because the only potential corroborators in this case--that is, 
the alleged eye witnesses to the accusations in question--those 
allegedly present in the circumstances in question, say that they can't 
remember any instance in which anything like this happened--not just 
the underlying bad acts themselves as alleged but the events in which 
they allegedly occurred. That is what we call corroboration. You cannot 
have a statement you describe as corroborating unless there is someone 
who at the time saw or heard or was otherwise made aware of something 
at or around the time it occurred. That is what corroborating evidence 
is, and that is what is noticeably absent in this case.

  She also claimed that the FBI was not allowed to conduct a serious 
investigation. I do not know what she means. What I do know is that 
what the FBI was asked to do involved conducting a supplemental 
investigation

[[Page S6621]]

into current credible allegations of sexual misconduct, and that is 
what they did. We, the Senate Judiciary Committee, didn't put 
guardrails around that, didn't tell them they couldn't follow up on 
leads they deemed significant, didn't tell them they couldn't look past 
a certain witness, didn't tell them they couldn't follow up on 
something that might shed light on this candidate's credibility or his 
eligibility to serve in judicial office.
  That leads to another point. This man has now endured 7 FBI 
background investigations, with over 150 people interviewed during that 
time--150 people interviewed extensively about what they know about him 
and about what they know about his character. Those interviews and the 
report that was produced back up this man's character. And separate and 
apart from the fact that there is no corroborating evidence for these 
allegations, these independently backed him up.
  My colleague from New Hampshire, like my colleague from Illinois, 
also brought up the Affordable Care Act, as if assuming from the outset 
that, on the basis of policy, Judge Kavanaugh would rule a certain way 
in this or that aspect of anything having to do with healthcare. Here 
again, we have characterizations that would be much more fitting in a 
political debate for a political office, but, alas, that is not what we 
have here.
  My colleague from New Hampshire referred to the Mueller 
investigation. I don't know how that is tied to the nomination of Brett 
Kavanaugh to be an Associate Justice of the Supreme Court of the United 
States, but somehow she tried to make that an issue. I don't know what 
she is talking about. I don't know how that could possibly be relevant 
here.
  She made the argument--the very serious accusation--that Judge 
Kavanaugh somehow believes that the President of the United States is 
above the law. I challenge my colleague from New Hampshire to tell me 
what evidence she has that he believes that. This is a serious 
accusation and one that should not be made lightly.
  I have never ever heard of Judge Kavanaugh having said or written 
anything suggesting that the President of the United States is above 
the law. Yes, Judge Kavanaugh acknowledged, as he has repeatedly on a 
number of occasions in a number of settings, that there is a dispute 
among scholars as to the timing and manner of liability that might be 
faced by a current sitting President of the United States, but he has 
never said the President of the United States is above the law--never--
never hinted at it, never concluded that, and it is therefore unfair to 
attribute that view to him.
  Finally, my colleague from New Hampshire characterized Judge 
Kavanaugh as being someone who is without character and sort of the 
antithesis of being an impartial arbiter.
  I think the very best way we can view that with regard to his 
character is through his life of public service, through the way he has 
interacted with those he knows, those who have truly known him not just 
over the last 36 years but for his entire lifetime.
  The best we can evaluate his ability to be an impartial arbiter is to 
review the 300 published opinions he has written while serving as a 
judge on the U.S. Court of Appeals for the DC Circuit. I challenge any 
one of my colleagues to bring me any one of those opinions or any 
combination of those opinions that show that he is incapable of being 
impartial or that he is in any way challenged as to impartiality. They 
can't do it. They won't do it. They haven't done it because such 
opinions don't exist.
  Judge Kavanaugh is a good man. He is eminently qualified to serve on 
the Supreme Court of the United States. I endorse President Trump's 
nomination of him. I was pleased to vote in favor of cloture, and I 
look forward to voting for his confirmation in the coming hours.
  Thank you, Mr. President.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. BLUMENTHAL. Thank you, Mr. President.
  At some point during the confirmation hearing--now seemingly years 
ago but probably only just a month or so ago--I saw young women going 
through the halls of the Capitol with T-shirts that said ``I am what's 
at stake.'' I want to thank those young women and all of the countless 
women and men of all ages who have come to our Nation's Capital to show 
us what democracy looks like.
  I know that some of my colleagues have been displeased--in fact, have 
called it mob rule--but the power and force of democracy within those 
voices and faces--a lot of them were from Connecticut, and I am proud 
of your coming here to tell us what you think both for and against this 
nomination. That is what democracy looks like. When we reject the 
voices and faces of democracy coming to tell us their truth, we lose 
something very precious. It is of equal importance to the townhalls and 
the meetings and parades and all we do at home. I do a lot of it at 
home, but I was proud of the folks from Connecticut who came here and 
the folks who came from all over the country from as far away as Alaska 
and Hawaii to give us the benefit of their insight and perspective. ``I 
am what's at stake'' is the message those women were conveying to us in 
real time.
  We talk here in words. Sometimes we hold up posters. We talk in 
abstract; that is, the legal parlance of the courts and our 
legislature. But our decisions have real-life consequences, and the 
appointment of Brett Kavanaugh and the confirmation that likely will 
take place tomorrow will affect real people in real time for 
generations to come because it is for a lifetime.
  The courts are among the most anti-democratic institutions in our 
country, the greatest democracy in the world and the most enduring of 
any democracy. They are lifetime appointments. They are insulated 
generally from attack or even criticism because folks who criticize a 
judge in his or her presence can be held in contempt. They have powers 
to punish contempt by immediately jailing someone. They are anti-
democratic so long as they fail to reflect the will of the people if 
there are excesses, if the nomination and confirmation process goes off 
the rails. And that is what is happening here--a broken promise and 
process that has caused a rush to judgment simply for the sake of 
arbitrary deadlines and irrational timelines placed on a nomination 
that is fundamentally flawed.
  A lot of my colleagues have relied on personal assurances from Brett 
Kavanaugh in their chambers. He talked to me an hour, and he assured 
me, I heard my colleagues say. He assured me that he will not overturn 
Roe v. Wade, but his answers to us under oath on those topics were 
evasive and misleading.
  When I asked him, for example, in our hearings about Roe v. Wade, he 
repeated the vague commitment to settled precedent, but he couldn't 
explain why he referred to that precedent in his Garza dissent as 
``existing precedent.'' It would be like introducing your wife as ``my 
current wife.'' How long do you think that wife is going to be around?
  He referred to abortion-on-demand. These kinds of code words sent a 
signal to the Federalist Society and the Heritage Foundation, and they 
were the direct cause--or at least one of them--for his being on the 
President's short list after he hadn't been on it before he issued that 
dissent.
  Looking to what he has actually written and said is a much keener, 
more reliable insight into what he will do, more than personal 
assurances.
  His writings indicate that he believes, in effect, in a President who 
can refuse to enforce the Affordable Care Act simply because he deems 
it unconstitutional. He concludes, in his vision of the Constitution 
and his interpretation of the statute, that they are in conflict, even 
after the Supreme Court of the United States upholds it and a prior 
President signs the law and a Congress passes it.
  That kind of monarchial power is an anathema to our constitutional 
sense of checks and balances, and the result could well be--in fact, 
likely will be--that millions of Americans will be deprived of 
protections when they suffer from diabetes and heart disease, 
Parkinson's, high blood pressure, pregnancy--the preexisting conditions 
for which the Affordable Care Act was designed to afford people 
protections in insurance.
  Healthcare, women's reproductive rights, the right of a woman to 
decide when she wants to have children, the

[[Page S6622]]

right of people across America to decide when they want to marry the 
person they love, consumer rights, workers' rights, environmental 
protection--all are at stake to real people in their real lives for 
generations to come. ``I am what is at stake'' applies to every 
American.
  I have never been angrier or sadder since coming to the Senate. This 
nomination was essentially the result of a rush to judgment and of a 
coverup, starting with the concealment of millions of pages of 
documents. Those documents are in the National Archives. They belong to 
the people of the United States, but the White House chose to hide 
them.
  Then, there was a straitjacketed sham of an investigation into sexual 
assault--yes, a sham; really, a whitewash--that refused to interview 
dozens of witnesses, some of them eyewitnesses who could corroborate 
the credible and powerful allegations made by sexual assault survivors.
  My office spoke directly to Kerry Berchem. There is a more recent 
report out tonight--an excellent report by NBC--about how she and 
others tried to be interviewed. They sought and beseeched the FBI to 
talk to them, but the FBI was given a list because the purpose of that 
investigation was not to find the facts. It was to offer cover. It was 
to permit our colleagues to say there has been a seventh investigation.
  Have my colleagues read those six investigations? Do they understand 
that the general practice--we can't talk about the details on the 
floor, of course--of the FBI is to begin at age 18, not before? Do they 
understand that the general practice of an FBI background investigation 
is to interview professional colleagues, coworkers, supervisors, and 
references that are suggested by the nominee to any particular 
position?
  The seventh investigation was really the crucial one regarding those 
allegations of an individual 17 years old or even 18, in college, where 
there was no reason in those earlier six investigations to go back. The 
FBI was straitjacketed, and that is a disservice to the U.S. Supreme 
Court, to the Senate in our constitutional responsibility, to the 
people of the United States, and, ultimately, to Brett Kavanaugh, 
himself, because these allegations will not be going away any time 
soon. They will hang over him and the Court as a cloud and a stain for 
years and years to come. Facts and evidence have a really powerful way 
of coming out. Eventually, facts and evidence have a way of finding a 
way to the public realm.
  From the beginning, this nomination has been a crucial test for the 
Senate and for the Nation, but this fight is about more than just this 
Supreme Court seat. It is about a courageous and credible sexual 
assault survivor who came forward. Actually, she expressed concerns to 
friends before the nomination was made about Brett Kavanaugh's possible 
nomination. She recounted her story years before even the seat opened, 
as documented by her therapist's notes and her husband, who, by the 
way, was never interviewed. Her husband was never interviewed. Talk 
about corroborating witnesses. Her therapist's notes were never 
reviewed, and she herself was never interviewed by the FBI. That is an 
absence of factfinding. And, of course, Judge Kavanaugh was never 
interviewed, as well.

  She came forward to say she was sexually assaulted by Brett 
Kavanaugh, and the details of her claim were lacking in some part. She 
was frank to admit that she couldn't remember everything, which is not 
atypical of sexual assault survivors, as the experts would have told 
the FBI if they had interviewed some experts. But she could remember 
some parts of that story, and they are details that I will never 
forget: the laughter from Brett Kavanaugh and Mark Judge, the third 
person she knew to be in that room--the laughter at her expense. The 
mocking and ridiculing laughter are so vivid in her memory. It is the 
same mocking and ridiculing laughter that we heard at some of the 
rallies where the President mocked and ridiculed her--the same mocking 
and ridiculing that, for decades, have been applied to survivors of 
sexual assault who come forward. She has endured the same nightmare of 
public shaming and character assassination and threats--potential 
retaliation that all too often has silenced sexual assault survivors. 
She braved that nightmare, knowing full well what was coming, but maybe 
she thought it would not come from Members of the Senate. Maybe she had 
that naive hope, and if she had it, she was wrong.
  Our colleagues here said she was mixed up. They said they believe 
her, they find her credible, but she must be wrong about the identity 
of the person who attacked her. Well, that echos to the second point 
that rung true and vividly in her testimony when she was asked: Could 
it be mistaken identity? Absolutely not. Was she sure it was Brett 
Kavanaugh? 100 percent sure.
  I have a message for my Republican colleagues: You can't believe the 
survivors only when they say what you want to hear. You can't believe 
the survivors for only those parts of the story that are comfortable 
and convenient. You can't believe them only when they tell you how they 
have been hurt, horrifically harmed, but not the person who harmed them 
and hurt them. And you can't believe them if you reject the possibility 
of a thorough, complete, fair, and impartial investigation into all of 
the facts and the evidence.
  My Republican colleagues say they would like to believe Dr. Blasey 
Ford and they would like to believe Deborah Ramirez, but there is no 
corroborating evidence. You cannot believe survivors without seeking 
the corroborating evidence. You cannot believe them if you turn a blind 
eye to witnesses who come forward and not only are willing but, 
actually, in effect, pound at the FBI's door.
  I reviewed those interviews with the people who were on the list that 
the FBI permitted to be interviewed, but I have also reviewed the 
mounds of tip line records. I don't know how many of my colleagues have 
done so. They are fascinating and illuminating and profoundly revealing 
because there are actually tips from people who came forward and had a 
personal connection to the events of interest. Of course, I am barred 
from providing details, but none of them were contacted or interviewed. 
That is not an investigation. That is not an investigation by the FBI 
worthy of the FBI's name.
  I offer no criticism of the FBI because they were, in effect, 
narrowly circumscribed, limited, straitjacketed, handcuffed by someone 
in the administration. We need to find out who it was and how it was 
done. Both women offered evidence of the kind that is routinely offered 
in sexual assault cases. They can prove that they told others about 
their experiences long before the current nomination fight. Christine 
Ford had a polygraph test and therapist notes. And both women can point 
to a history of Brett Kavanaugh acting inappropriately when drunk. What 
my Republican colleagues apparently mean when they say there are no 
corroborating witnesses is that none were permitted to tell their story 
to the FBI, not that they weren't available.
  I would like to say that this approach to sexual assault survivors is 
a thing of the past, a throwback to some other time, but the fact is 
that it remains real in the lives of survivors around this country 
today. They should know that we are going to stand with them, that this 
example of, in effect, failing a proper and complete impartial 
investigation is far from acceptable to us.
  I want to make a commitment to my colleagues and the public that I 
will continue fighting to find the facts. The American people deserve 
to know why the FBI failed to complete a full investigation of these 
powerful and credible allegations. They deserve a full understanding of 
what the investigation would have found. They deserve full access to 
Judge Kavanaugh's record--those millions of pages of documents that 
were concealed and that raise the question: What are they hiding? What 
are they afraid of the American people seeing from the time that Brett 
Kavanaugh served in the White House as Staff Secretary?
  I filed an FOIA suit to force disclosure of millions of pages of 
Judge Kavanaugh's documents that have been hidden from the country. The 
majority leader chose to vote without seeing those documents, but I 
have no intention of stopping in this effort until they have been 
disclosed--and they will be. They will come out, adding to the cloud 
and the stain.

[[Page S6623]]

  The allegations here are desperately serious. They are credible and 
powerful, and our job was to make sure that the facts and the evidence 
either supported them or not.
  Debates over the Supreme Court often focus on civil rights and civil 
liberties, those protections enshrined in the first 10 Amendments to 
the Constitution. Make no mistake. Those rights and liberties are at 
stake here. But this Supreme Court debate is also about the fight 
between powerful corporate interests and ordinary Americans. 
Corporations have become adept at using the courts when their arguments 
fail to persuade policymakers and the American people.
  When the EPA bans polluters from spewing poison into the environment, 
polluters go to court to stop that Agency. When the FCC prevents cable 
giants from censoring the internet, those companies go to court to stop 
that enforcement.
  When the Labor Department or the NLRB take action to protect workers 
or when the CFPB or FTC take action to protect consumers, big employers 
and financial services firms go to court to stop them. If you want to 
breathe clean air and drink clean water, if you want a free and open 
internet, if you want to work or purchase products free of corporate 
abuse and fraud, this fight is about your life. It is about you.
  This nomination poses a clear and present danger to those enforcement 
efforts. He poses a danger to the rights of women to decide when they 
want to have children and to millions of Americans with preexisting 
conditions who want to keep their affordable health insurance. He poses 
a danger--clear and present--to workers and consumers who want to live 
free of corporate domination. He poses, most dangerously, a threat to 
the checks and balances that prevent a President from running this 
country like his own personal fiefdom.
  In his opinions, his speeches, his writings, and his testimony, we 
can see where this nominee will take the country if he is a swing vote, 
as he is likely to be on so many of these issues. He has used those dog 
whistles or bumper stickers in his campaign for his nomination, those 
terms and buzz words, ``abortion on demand.'' Sometimes he uses a 
bullhorn, as when he promises conservative organizations that he will 
overturn longstanding, near-unanimous precedents that have fallen out 
of favor with the rightwing or when he goes out of his way to publish 
long dissents, articulating a radical understanding of the law and its 
value.
  He has been not so much a nominee as a candidate for office. He has 
been campaigning for this job since law school. Like many candidates 
for office, he has spent that time demonstrating to potential political 
patrons that if they pick him, he will diligently represent their 
interests. He is their guy. That is how he became a member of that 
elite group on the President's short list.
  I will conclude by saying that most chilling--indeed, frightening for 
me--was his appearance before this committee when he gave a rant and a 
screed that was written the day before, so he said. It was delivered 
word for word from that text. It was hardly the result of some 
spontaneous insult or outburst. It was calculated and planned. It took 
back the mask of the judge and revealed the man--bitter self-pity, 
rageful, and a deep partisan, which he had demonstrated before 
throughout his career as a party operative but perhaps not on the 
bench. The man revealed there said to us: ``What goes around comes 
around.''
  He said that the powerful allegations of the sexual assault survivors 
were the result of a leftwing conspiracy fueled by revenge on behalf of 
the Clintons. Those remarks demean the brave and courageous survivors 
who came forward on their own initiative, without any encouragement by 
any Senator, and they were degrading to Christine Blasey Ford and 
Deborah Ramirez and to the survivor community. They were directly 
contrary to Judge Kavanaugh's own test of what a judge should do:

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

  He was sitting on one side of the aisle. In fact, he was sitting on 
one distinct side of that side of the aisle. That is the reason former 
Justice John Paul Stevens found his appearance before that committee--
not only his prepared remarks but what he said after--as disqualifying. 
That is the reason the 2,400 lawyers and professors and former judges 
have written urging that his nomination be rejected. That is the reason 
I find most frightening.
  I have appeared four times before the U.S. Supreme Court. Every time 
has been an extraordinary honor, and I have spent a good part of my 
career standing in front of judges, sometimes with juries and sometimes 
not. What I prized in judges most importantly was that they were 
nonpartisan, that they were objective and neutral. I don't know how 
lawyers or ordinary parties to any case could stand before Judge 
Kavanaugh now and feel they will be judged fairly and impartially.
  My colleagues have come to accept these vague assurances from 
nominees that they will simply call balls and strikes, that they will 
follow settled precedent, but we have seen those vague promises 
betrayed when judges or Justices actually reach the Court.
  I look to what he said in that hearing before the Judiciary Committee 
as a warning about what will happen if Justice Kavanaugh is confirmed. 
What he wrote in the op-ed today in the Wall Street Journal provides no 
assurance because the real Brett Kavanaugh came before our committee, 
and the real Brett Kavanaugh wrote down in advance what he felt. The 
real Brett Kavanaugh should not be confirmed to the U.S. Supreme Court. 
Even at this late hour, I hope my colleagues will heed that warning.
  We may lose this battle, but we cannot lose the broader struggle for 
justice in this country. I will stay angry. I hope my colleagues and 
others around the country will as well.
  To the young people who came to these halls wearing that T-shirt, ``I 
am what's at stake,'' you are right. You are what is at stake. Stay 
angry.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Tillis). The Senator from Oregon.
  Mr. MERKLEY. Mr. President, our Founders had a very clear design for 
the ability to put individuals into high posts of great responsibility. 
They really wrestled with it. They considered giving the ability to 
appoint judges and executive officers to the assembly, as it was 
referred to. I think we have to worry a lot about individuals swapping 
favors. One person saying: You support my friend, and I will support 
yours--that wouldn't lead to those with the best qualities serving in 
these key positions.
  They concluded after great debate that it would go to a single 
individual, the President, to nominate. They realized that the 
President can go off track. They thought the President might express 
favoritism of a variety of sorts. Alexander Hamilton talked about this 
at some length: maybe favoritism to people in the home State, maybe 
favoritism to a close group of friends, maybe favoritism to individuals 
who were doing favors for the President. Who knows? Therefore, there 
had to be a check on the potential abuse of the appointment process. 
That is where the Senate came in, to advise and consent--the President, 
to nominate; the Senate, to consent. What that meant is that the Senate 
could not interfere with the President on the nomination process, and 
the President was not to interfere with the Senate in the confirmation 
process. Yet we have right now, for the first time in U.S. history, as 
far as anyone has been able to ascertain, a case in which the President 
of the United States has interfered greatly, first of all by requesting 
that the Senate not look at all 3 years in which this individual, 
Kavanaugh--the nominee--served as Staff Secretary to President Bush. 
Second of all, the President appointed an individual to provide the 
stamp of Presidential privilege on documents for when he served at the 
White House that they did not want the Senate to see. We have some of 
those documents. He said: Those are OK. Yet they censored 100,000 
documents with the Presidential privilege stamp. This has never been 
done, ever, as far as we can determine.
  This body, on a bipartisan basis, requested all of those documents. 
This was not a case of the President saying ``Please don't request,'' 
like with the Staff Secretary; this is a case in which the Senate 
together said ``Give us the documents,'' and the President refused.

[[Page S6624]]

  This is something we should all stand together and say: Unacceptable. 
It is unacceptable that the President stepped across the separation of 
powers to interfere with the work of this body to review the nominee's 
record. The fact that there have not been loud cries of protests from 
the leadership of this Senate is a shame on this institution--that it 
has not fought for the separation of powers embodied in the 
Constitution. It has not fought for the ability of each and every 
Senator to be able to exercise full responsibility when we took our 
oath of office to review the records of nominees, engage in the advice 
and consent exercise.
  Is this to be a precedent for the future because the leadership here 
has so shamefully abandoned the core principles of the Constitution and 
the responsibilities of this Chamber? I hope not. I hope that, 
together, all 100 Senators will find in the future they will make sure 
the President cannot interfere with our responsibility.
  This is only one of the many problems, the many concerns, about Brett 
Kavanaugh. Brett Kavanaugh didn't raise a single voice about the 
interference of the President with the exercise of this body. He is 
being nominated to the Supreme Court. He is supposed to have read the 
Constitution at some point. He is supposed to understand the separation 
of powers. He is supposed to stand up for the principles embodied in 
that great document, and he did not. That alone should tell you this 
man does not belong on the Supreme Court.
  Then, of course, there is the fact that he has a view of Presidential 
power that is above and beyond the law. Try to find that in the 
Constitution.
  Among the 25, he was the one who had the most expansive view of 
Presidential power. He is the one the President chose. Why is that? 
Because the President is under investigation for conspiring with Russia 
to fix the election. That is why. He is worried. He is up at night. He 
wakes up early. He tweets out to the world--angry, hostile. He wants to 
make sure he has a Justice on that Court who can help write a ``get out 
of jail free'' card. What a conflict of interest. What a conflict of 
interest that this Court might have to rule on whether a President can 
pardon himself. It is something we have never had to worry about 
before, whether a President can fire a special prosecutor, despite the 
writing under the law.
  That is not all. We have before us a nominee who has been deceptive 
and misleading to this Chamber time after time. Different articles have 
put up different lists. They all come down to here is what he said, and 
here is the truth. Here is what he said, and here is the truth.
  I want to pivot, though, to perhaps the most shameful, difficult part 
of this nominee; that is, his record of abuse toward women and the 
complete failure of this body to look into that.
  I heard earlier on the floor of this Chamber a number of my 
colleagues across the aisle use the word ``fairness.'' ``We want 
fairness.'' I heard it from one, two, three, four colleagues, 
``fairness.'' Did a single one of them express any regret that when Dr. 
Ford came forward and asked for those who could corroborate her 
testimony, asked for the Judiciary Committee to hold a hearing with 
those folks able to testify? Did they express any regret they turned 
her down?
  Even in 1991, the Judiciary Committee brought forward people to 
corroborate Anita Hill's story. Here we are 27 years later, and we 
don't treat a woman coming forward to share an experience of sexual 
abuse--we don't even allow those individuals who can corroborate to 
testify before the Judiciary Committee.
  Did I hear a single Republican stand up and say ``I am embarrassed we 
treated her so poorly''?
  Let's take Debbie Ramirez. She laid out a list of 20 individuals. The 
Judiciary Committee had a lot to say about her experience. Did they 
invite her to testify and be able to tell her side of the story? No, 
they did not. She had a list of 20 individuals who could provide 
corroborating information. Did they ask a single one of those 20 to 
come before the committee? Did they allow a single one to come? No, 
they did not. There was no fairness in that committee. Let's be clear 
about that.
  Let's not hear more highfalutin arguments about fairness from the 
other side of the aisle when these two women were treated in such an 
egregious and awful fashion.
  Then, there is the phony FBI investigation. I praise my colleague who 
insisted that the record be reopened, the background check be reopened 
for the FBI to provide an opportunity to check out these experiences 
shared by Debbie Ramirez and by Dr. Ford. On a background check, it is 
not a criminal investigation, and the FBI can't decide who to talk to.
  Did I hear a single Member across the aisle express any embarrassment 
about the fact that they let the President constrain the investigations 
so not one--not one--of the eight people Dr. Ford asked to be talked to 
was talked to? Not one. Zero. You call that fair? That is not fair. 
That is not fair to her, that none of the people she asked to be talked 
to were talked to.
  Did I hear a single person across the aisle express any reservations 
about the fact that that FBI investigation was so constrained by the 
President of the United States, with advice from the Republican 
leadership, that they did not talk to one of the 20 people Debbie 
Ramirez asked to be talked to about her experiences in college?
  You know, 1 of the 20 was a suite mate of Mr. Kavanaugh's. Well, when 
you go through your freshman year and you are a suite mate, you share a 
common living area, and there is one bedroom here and one bedroom here, 
so you are with each other all the time. You know a lot about the other 
folks. Well, that is a pretty powerful association. That individual is 
now a professor at Princeton Theological Seminary, and he heard this 
story when it happened. He heard about it, and he lived right there in 
the suite, and he thought it was horrific.
  I heard some colleagues say there was no one who could substantiate 
her story. That is simply false, and it is shameful to allege that 
there is no one when you know there is. It is unacceptable to call 
something fair when you deliberately instruct or encourage the 
President to make sure that the people who can provide the information 
are not talked to.
  This individual, now a professor at Princeton Theological Seminary, 
has a very fine reputation. He was so upset about this, he talked about 
it with his roommate his first year in graduate school long before Mr. 
Kavanaugh ever came close to any type of nomination debate. So you 
can't really say that he made it up now when he told another person 
about it long ago. And that individual was on the list to be talked to, 
but did the FBI talk to him? No, because the President wouldn't let the 
FBI talk to him, and the President consulted with the Republican 
leadership, and they didn't want anybody talked to who could actually 
corroborate these stories.
  That is a rigged system. For anyone on this floor to say that is 
anywhere close to a form of justice, that is not true.
  These women have been horrifically treated by this Chamber. Just as 
the country knew Anita Hill was treated so poorly, so will, for decades 
from now, people talk about the abuse of power that emanated from my 
colleagues across the aisle against these women.
  Across this land right now, women have been reliving their own 
experiences of abuse. It has been an extraordinarily painful 
experience. They have been calling our offices. I am sure they have 
been calling all of our offices. I got on the phone and took many calls 
today. I heard story after story. It takes a lot of energy out of your 
heart to listen to individuals say, I am sharing this with you, and 
they start crying on the phone--person after person.
  I also have all of the stories that have been written and sent to me 
as letters. I thought I would share a few of them with you.
  Here is a letter:

       What a farce! The disrespect to Dr. Ford and to victims 
     everywhere. I am sincere in saying that this TRIAL is turning 
     my stomach. I have fought back tears. I am a victim of 
     similar offenses. It is no better, and in some ways worse, 
     that it is a woman going after Dr. Ford in a subtle attempt 
     to cloud the trust of her experience.

  Well, what is she referring to when she says it is a woman going 
after Dr. Ford? She is talking about the fact that the leadership on 
the Judiciary Committee hired a prosecutor to come

[[Page S6625]]

in and act as if Dr. Ford were a criminal on trial and to interrogate 
her as if she were a criminal on trial. That is what this individual 
said ``is turning my stomach.'' And it turned my stomach, too, to see 
that abuse of power here in the U.S. Senate.
  Another letter:

       Hello, Senator. It has been 21 years since I was raped. I 
     had at the time only shared my story with the emergency room 
     doctors, the police, and my mom. Since it occurred, I have 
     only shared my story with my husband, until this week on 
     Twitter with the ``why I didn't report'' hashtag.
       With each new accusation against Brett Kavanaugh, it has 
     forced me to relive all the horrible memories from the night 
     my assailant raped me. This moment in history and the fact 
     that the majority of Republican Senators who have either 
     tried to discredit the women coming forward or victim blame 
     and shame them has literally made the event so fresh in my 
     mind; as though it just happened all over again yesterday.
       As like Dr. Ford, the details of dates, exact time, exact 
     clothing, are not extremely forthcoming to my memory, 
     although I remember the colors of what we were both wearing. 
     The fear, his actions, what I was feeling, and what was said 
     during the rape, I will never forget. And I will never forget 
     the smell of the cologne he was wearing and how it makes me 
     physically ill when I smell it to this day.
       Kavanaugh can have his fake tears and shout his anger all 
     he wants because I guarantee you, if the man who raped me was 
     trying to get a job on the Supreme Court, and if I had the 
     strength to come forward like Dr. Ford did, then he too would 
     yell and scream at the realization he was being confronted 
     and that it was about to be taken away from him. Not to 
     mention, my sexual assault assailant would NOT require an FBI 
     investigation either.

  And what is she referring to there? She is referring to the fact that 
Dr. Ford took a polygraph exam, and Dr. Ford asked for an FBI 
investigation. Mr. Kavanaugh did not take a polygraph exam, and Mr. 
Kavanaugh did not want an FBI investigation. Quite a difference there.
  Here is another story:

       Five years ago, I was assaulted by a trusted friend in my 
     dorm room. Although I don't recall some critical details, 
     indelible in the hippocampus is the humiliation and fear 
     of retaliation. That is why I never reported, even when 
     school nurses urged me to.
       Years later, I suffered PTSD and rarely feel entirely safe.
       Watching Kavanaugh's angry, arrogant performance was deeply 
     triggering to me--would my attacker act the same way if I 
     outed him?
       And would he also find the support of 33 percent of 
     Americans, just like Kavanaugh?
       Until now, I haven't shared that I am a survivor with even 
     the closest of my friends and family. But it is too important 
     to stay quiet now.

  Here is another story:

       Hello, Senator Merkley. When I was young in the early 
     1970s, I was raped for an entire year by someone close to our 
     family. I didn't tell. I didn't tell because his warnings and 
     threats were too powerful and frightening for the child that 
     I was.
       The man went on to become active in a leadership role. He 
     was, in fact, in a position to give talks about morality and 
     principles, all the while knowing how he affected my life. 
     Because that was the year he took my childhood away.
       Watching Dr. Ford's testimony was tough, but I did it.
       I always knew if I came forward against the man who did 
     this, it would be his word against mine and as a female, I 
     would lose. So I stayed quiet, never naming him publicly and 
     never will.
       But I'm writing today to ask you for two thing, please--if 
     you hear any of your fellow Senators say ``I know his 
     character. He would never do that. He's never done anything 
     like that in front of me,'' please remind them that they 
     don't like witnesses. For me, there was never a hint of an 
     assault until he got me alone.
       And if you hear your fellow Senators say, ``But it happened 
     almost 40 years ago,'' please assure them that in the 
     victim's heart, mind and life, it happened last week. It 
     happened yesterday. It happened today. Because you never get 
     past what was done to you. Ever. You can't.

  She went on to share that she wrote this letter to me and deleted it 
and wrote it again and deleted it several times. She had just deleted 
it again when her husband came in the door carrying a statement that 
someone had posted on the doors in the neighborhood that happened to 
have a quote from me, one of her two Senators, and she took it as a 
sign, and she decided to write that letter again and send it.
  She said:

       Now maybe what happened to me will bring about some good.

  I know all of us are getting letters like this.
  When she said she never came forward because it would be ``his word 
against mine and as a female I would lose,'' she is relating exactly 
what happened to Dr. Ford.
  It was set up he said, she said, with no corroborating witnesses 
called even though Dr. Ford asked for them. And then because it was he 
said, she said, my colleagues could stand up and say: Just can't prove 
it. Can't prove it.
  But why didn't my colleagues stand up and say: It is an outrage that 
we didn't call the people she asked us to call. It is an outrage that 
there was this phony FBI investigation that didn't talk to any of those 
people.
  What she was talking about right here is how Dr. Ford was treated in 
this Chamber, that she would lose because men in power would rig the 
system and find for the man. That is what has happened here.
  That is what happened with Ms. Ramirez, Debbie Ramirez. She had 
corroborating information from the suite mate of Brett Kavanaugh, but 
we here, this Senate, we rigged the system so that that information 
could not be considered. That is what this woman is talking about, why 
she didn't come forward, because it would be her word against a man's. 
The system would be rigged and would find for the man. That is what is 
so disturbing to women all over this country--a rigged system, that we 
couldn't find in our collective judgment, in our collective process, 
the ability to rise against partisanship and give fair treatment, a 
fair process, to the individuals who came forward. It may not have 
changed the course of events and the final vote, but at least women 
would know we have come from where we were. We may not have been 
entirely fair to Anita Hill, but we have learned and we have come 
further. Instead, we did worse. That is a regrettable, powerful 
consequence of what has happened.
  Another constituent wrote to say that although he was not a direct 
victim of assault, both of his brothers were repeatedly sexually abused 
by a Catholic priest who spent 8 years in prison for abusing as many as 
150 boys. He went on to say that this priest was in charge of a boys' 
choir even though it was known that he had issues with sexual abuse.
  His brothers were part of the choir, and he is troubled, he writes, 
that his younger brother served in the same choir he did, and even 
though he was aware there was a problem, he didn't intervene.
  He says, referring to the priest:

       He ruined our lives. Though I was not directly a victim of 
     his abuse, I carry with me the shame of not knowing to speak 
     up about what I saw.

  He says that shame is amplified because his younger brother sang in 
the same choir for a time.
  He goes on to talk about a culture of power and privilege, where 
people think they can abuse others and get away with it.
  He says:

       We are seeing this behavior being accepted at the highest 
     level of office in our country.

  He goes on to relate that this is similar to the culture of abuse 
towards women.
  He says:

       The culture of abuse towards women is being openly 
     perpetuated by the leaders of our country. The people we are 
     supposed to put trust in.

  That was the end of his quote.
  He went on to say:

       I have never felt like it was my story to tell. The only 
     reason I tell it is because it illustrates how dangerous 
     these power structures can be and how easily they can be 
     abused. We have to take great care when choosing who to give 
     great responsibility to.

  Have we in this Chamber recognized how easily our power structure can 
be abused? Did we rise to insist on fairness for individuals who 
brought their stories forward? Did we insist that they have the 
opportunity to have their witnesses and corroborating information 
considered by this Chamber? We did not. We failed them. We failed this 
country. And when he says that we have to take great care when choosing 
who to give great responsibility to, he is saying we should have taken 
great care. And we know that in this particular nomination, there are 
two powerful pieces of it. One, it is lifetime, so the person will 
serve for decades. The second is, it is the top Court.
  Are there not individuals in this land of hundreds of millions of 
people who have stellar records of character who could serve on that 
Court?

[[Page S6626]]

  I hope that across America, it will come to great discussion and lead 
to changes in how we think and how we behave. I hope that between now 
and the vote tomorrow afternoon, there will be some Members of this 
Chamber who will decide to take seriously the responsibility that we 
had and that we failed to exercise appropriately. We will decide that, 
you know what, yeah, we are going to close debate, but we haven't yet 
voted to put this man on the bench, and with the committee having 
conducted a completely rigged process, we need to stop and rethink what 
we are doing and not put Brett Kavanaugh on the Court.

  Thank you, Mr. President.
  Mr. UDALL. Mr. President, the Supreme Court nomination before us is 
of historic importance. We have a nominee whose nomination is clouded 
with credible allegations of sexual assault, whose truthfulness before 
Congress is questionable, and who showed himself as partisan and 
lacking in judicial temperament before this body in his supplemental 
hearing.
  As of today, more than 2,400 law professors throughout the country 
are on record that Judge Kavanaugh's display of lack of judicial 
restraint during that hearing is disqualifying. The growing list 
includes professors from all political stripes and professors who had 
previously supported his nomination. Indeed, former Justice John Paul 
Stevens, a highly respected jurist, has taken the unusual step of 
publicly opining the same.
  Yesterday, I spoke on the Senate floor about why Judge Kavanaugh 
should not be confirmed in light of the allegations swirling around 
him, his lack of candor with this body, and his demeanor during the 
supplemental hearing. But, Mr. President, on the merits as well, Judge 
Kavanaugh has not shown himself deserving of elevation to our highest 
Court.
  Let's start with his overly expansive view of Executive power--a view 
that could shield our current President from being held to account for 
potential crimes and misdeeds.
  Judge Kavanaugh has written and spoken extensively about the need to 
shield the President from criminal investigation while in office. He is 
on record that, in his opinion, the President has authority under the 
Constitution to terminate an independent counsel at will. Indeed, there 
is probably no other viable candidate to the seat who has argued more 
strenuously in favor of Presidential immunity and the President's 
absolute authority to fire a special prosecutor. It is no coincidence, 
then, that this President, who is under criminal investigation by a 
special counsel, selected Brett Kavanaugh to sit on the Court.
  Judge Kavanaugh is clear that, as a matter of policy, Presidents 
should be completely immunized from criminal and civil suit while in 
office. He writes that ``the President should be free from some of the 
burdens of ordinary citizenship.'' For Judge Kavanaugh, freeing the 
President of ``burdens'' the rest of us must bear takes precedence over 
ensuring the President follows the law.
  Judge Kavanaugh's supporters point out that his writings in support 
of broad Presidential immunity represent his policy views, not his 
constitutional analysis. But his writings do not tell us that he would 
uphold Special Counsel Mueller's investigation, nor would he tell us 
during his confirmation hearing that he would hold the President to 
account for any crimes. In my view, the ``burdens'' of a criminal 
investigation do not outweigh the dangers of a criminal occupying the 
Oval Office.
  There is nothing in the Constitution that immunizes a President from 
criminal investigation and prosecution while in office. The drafters 
knew how to immunize public officials if they wanted. Members of 
Congress, for example, have express immunity ``from arrest or 
interrogation for any speech or debate entered into during a 
legislative session.'' The speech and debate immunity for Congress is 
narrowly tailored. The drafters gave no immunity--narrow or broad--to 
the President or members of his Cabinet. While Judge Kavanaugh claims 
to be a strict constructionist, I have no confidence he would stick to 
the text of the Constitution and not grant the President immunity.
  There is evidence in the public record that close associates and even 
family of the President may have conspired with Russia, and we have the 
President's own inexplicable behavior cozying up to and trying to curry 
favor with Vladmir Putin. There is abundant evidence in the public 
record that the President has worked to undermine the investigation 
into Russian interference in our election and investigation into 
himself. And we have sworn testimony from the President's former 
personal lawyer that the President directed commission of two campaign-
related felonies. If the President has committed crimes, he should be 
held responsible, just like the rest of us.
  Judge Kavanaugh has said he would ``put the final nail in'' Morrison 
v. Olson. Morrison v. Olson is the 1988, 8-to-1 decision written by 
Chief Justice Rehnquist that upheld the Independent Counsel Act. That 
act was passed in the aftermath of Watergate to curb Executive abuse 
and mitigate the obvious conflict of interest the U.S. Department of 
Justice would have investigating the President. Judge Kavanaugh sides 
with the lone dissent in that case and with the idea that the President 
should be able to fire the person who is investigating him--with no 
check. If the constitutionality of Special Counsel Mueller's 
investigation comes before the Supreme Court--and it is likely that it 
will--there is every reason to believe Justice Kavanaugh would have his 
chance to hammer in that nail.
  Judge Kavanaugh espouses a ``unitary executive'' theory of the 
separation of powers. Hidden behind this legalese is a simple and 
dangerous idea: that the President holds absolute power over the 
executive branch. Under his theory, President Trump could actually fire 
Special Counsel Mueller because he uncovered wrongdoing by the 
President. In plain terms, he would let the fox raid the henhouse.
  Judge Kavanaugh's theory that the Constitution requires no checks on 
the President's authority strains that document to the point of 
breaking. Our entire constitutional system of separation of powers is 
built on the principle of checks and balances--so that one branch of 
government does not accumulate and exercise an inordinate amount of 
power.
  Under DOJ regulations, the Attorney General, or Acting Attorney 
General if the Attorney General is recused, may only appoint a special 
counsel if it is warranted and there is a conflict with the Department 
or other ``extraordinary circumstances.'' Only the Attorney General--
not the President--may remove a special counsel. And the Attorney 
General--or in the case of Special Counsel Mueller, the Deputy Attorney 
General--may only do so for ``misconduct, dereliction of duty, 
incapacity, conflict of interest, or for other good cause, including 
violation of Departmental policies.'' The DOJ regulations provide 
appropriate and constitutionally sound checks on the executive's 
authority.
  The American people deserve to know the truth about Russia's attack 
on our democracy. They deserve to know whether Candidate Trump or his 
campaign was part of the attack. And they deserve to know all the facts 
behind the President's efforts to stop DOJ's investigation into Russian 
interference and any Trump collusion. The President should not be able 
to hide the truth and the facts by firing Special Counsel Mueller.
  And that is not all. There is open speculation that the President may 
pardon close associates. His family. Even himself. The new Justice may 
be called upon to determine the scope of the President's power to 
pardon and whether that power may be exercised for corrupt purpose. 
Given Judge Kavanaugh's overly expansive view of Executive authority, I 
am concerned he would set no limits on the President's power to pardon 
and would allow a Presidential pardon even if wielded to obstruct 
justice.
  At this point in our history, with so many questions whether the 
President, his family, or others close to him committed crimes, the 
American public must be assured that the new Justice will provide a 
check on the President. And not give him a blank check to commit 
crimes.
  I am proud that New Mexico is a majority minority State, but I am 
really worried that a Justice Kavanaugh will not protect minority 
rights. Ten percent of our State's population is Native American. Judge 
Kavanaugh, however,

[[Page S6627]]

has shown a distinct hostility to indigenous people's rights. For 
example, in Rice v. Cayetano, he argued in the Supreme Court against a 
voting system limited to Native Hawaiians, arguing they should not be 
treated like Tribes even though Native Hawaiians and Tribes share a 
history of forced assimilation. In that case, he represented the Center 
for Equal Opportunity--a fervently anti-affirmative action group. While 
the case was pending, he authored an op-ed in the Wall Street Journal 
arguing that ``any racial group with creative reasoning can qualify as 
an Indian tribe.'' He called the voting system a ``naked-racial spoils 
system.'' Such an offensive view demonstrates a level of 
misunderstanding--perhaps even willful ignorance unworthy of a nominee 
to our highest Court. While the Court ultimately struck down the voting 
system, it did not do so on Mr. Kavanaugh's claimed grounds.
  Recently disclosed emails that Judge Kavanaugh wrote as a White House 
lawyer confirm he is a threat to indigenous communities. In his view, 
if Native peoples are not organized into Tribes and live on 
reservations, they are not entitled to any special recognition under 
the law. But not all Tribes are alike. Not all indigenous peoples are 
organized the same way. Alaska Natives, for example, are organized as 
Tribes, villages, and regional corporations. Alaska Natives are 
rightfully concerned whether he will protect their rights.
  Bottom line: Judge Kavanaugh questions the constitutionality of 
programs specifically dedicated to Native Americans--a view that could 
upend decades of progress for Indian Country on everything from housing 
to government contracting.
  As ranking member of the Committee on Indian Affairs, I wrote to the 
chair of the Judiciary Committee in August asking for all of Judge 
Kavanaugh's documents related to Native issues. The Chair refused my 
request. So we don't even know if we have the full extent of emails and 
memos from Judge Kavanaugh disparaging Native rights.
  But we do know that Judge Kavanaugh is hostile to affirmative action 
programs. When he was a White House lawyer, he called Department of 
Transportation regulations designed to remedy past and present 
discrimination ``a naked racial set-aside.'' But those regulations, 
which favored ``socially and economically disadvantaged individuals,'' 
were upheld by the Federal courts under established equal protection 
principles.

  While Judge Kavanaugh advocates strongly for ``race neutrality'' when 
it comes to distribution of government benefits, he is not so quick to 
embrace race-neutral policies when it comes to racial profiling. In the 
aftermath of 9/11, in a series of White House emails labeled ``racial 
profiling,'' the idea of long-term use of racial profiling at airports 
and by law enforcement was raised. Mr. Kavanaugh responded that ``the 
people (such as you and I) who generally favor effective security 
measures that are race-neutral in fact DO need to grapple--and grapple 
now--with the interim question of what to do before a truly effective 
and comprehensive race-neutral system is developed and implemented.'' 
In other words, maybe we use racial profiling in the interim because 
coming up with a race-neutral system is so hard.
  In New Mexico, almost 49 percent of our population is Hispanic--the 
largest percentage of any State. If we were to accept racial profiling 
in New Mexico--coupled with our Native population and other minority 
groups--over 62 percent of our population would be targeted. That would 
be wholly unacceptable, as would be doing away with Federal and State 
programs intended to redress past and present discrimination.
  One of the most critical roles the courts play is protecting minority 
rights, but Judge Kavanaugh's record does not demonstrate he will 
fulfill this role. He simply doesn't appear to understand or to 
appreciate the discrimination, oppression, the assault that Native 
peoples, Hispanics, African Americans, and other groups have faced over 
time and continue to face. Supreme Court equal protection jurisprudence 
is informed by this history.
  Whether it is affirmative action, voting rights, or redistricting, we 
must have a Justice on the Court who protects minority rights, and 
Judge Kavanaugh has not shown himself to be that Justice.
  The same is true for women's reproductive rights. Trump the candidate 
promised only to appoint Justices who would overturn Roe v. Wade. 
Potential Supreme Court candidates can only make it onto the Federalist 
Society list if they will vote to overturn Roe.
  Judge Kavanaugh's record does not bode well for women's rights. He 
tried to stand in the way of a 17-year-old pregnant girl, an immigrant 
held in Federal detention, who wanted an abortion. He would have 
required her to find a ``sponsor'' in the United States who would 
provide housing for her and allow her to terminate her pregnancy. And 
if the Federal Government couldn't find a sponsor, the young woman 
could return to the district court in 2 weeks. Of course, the longer a 
pregnancy continues, the greater the risk to the woman's health and 
safety.
  Judge Kavanaugh did not believe these onerous, bureaucratic 
requirements represented an ``undue burden'' on the young woman's 
constitutional right to terminate her pregnancy. Fortunately, however, 
the full DC Court of Appeals did. They quickly overturned the decision 
and allowed the young woman to immediately exercise her right.
  The American public--Democrats, Republicans, and independents--
support a woman's right to choose. If Judge Kavanaugh would have this 
country go back to the days of back-alley abortions, he should have 
said so during his confirmation hearings, but he would not. I cannot 
vote for a nominee who is not willing to affirm a woman's right to 
choose.
  A woman's reproductive right is not the only health care right at 
risk with Judge Kavanaugh's nomination. Our entire system of health 
care rights and benefits under the Affordable Care Act is in jeopardy. 
A group of Republican attorney General and Governors has filed suit to 
gut critical ACA protections. They want to take away protections from 
the millions of Americans with preexisting conditions and allow 
insurance companies to discriminate on this basis again. They want to 
take away the prohibition against lifetime limits on benefits, and go 
back to the days when you could get booted off insurance because you 
have high medical expenses. They want to take away the right to cover 
children up to age 26, to get free preventive care, and prescription 
drug coverage for seniors. And they want to eviscerate Medicaid 
expansion, which has given 11 million Americans healthcare they didn't 
have before.
  The Trump administration has sided with the Republican attorney 
Generals and Governors who want to decimate our health care system 
despite the President's repeated campaign promises to cover everyone, 
protect people with preexisting illnesses, and cover children up to age 
26.
  This case is now before a Federal court in Texas and will likely make 
its way to the Supreme Court. We do not want a Justice who sides with 
corporate interests over consumers, who is willing to throw statutory 
language and constitutional principles aside to get the results he 
wants. I am concerned that a Justice Kavanaugh would do the President's 
bidding and gut critical health care rights that Congress has enacted 
and that the American people overwhelmingly stand by.
  But there is more at stake. In his legal opinions, Judge Kavanaugh 
inevitably sides with business and against the environment, workers, 
and consumers. His environmental record deserves a spotlight. 
Interpreting environmental statutes, Judge Kavanaugh will veer far from 
the legal text he claims to honor to reach the result he wants. For 
example, Judge Kavanaugh once blocked the Environmental Protection 
Agency from protecting ``downwind'' states from nitrogen oxide and 
sulfur dioxide coming from ``upwind'' States under the ``Good Neighbor 
Provision'' of the Clean Air Act. Nitrogen oxide and sulfur dioxide 
develop into ozone and cause respiratory illnesses and other health 
problems. However, the Supreme Court reversed Judge Kavanaugh. In a 6-
to-2 decision that included justice Kennedy and Chief Justice Roberts 
in the majority, the Court found that Judge Kavanaugh ``rewrites a 
decades-old statute whose plain text and structure'' are clear.

[[Page S6628]]

  In case after case, whether in dissent or the majority, Judge 
Kavanaugh votes against the environment and with industry. He voted to 
invalidate EPA rules to regulate emission of greenhouse gasses by 
plants and factories, to overturn EPA's mercury and air toxics 
standards limiting hazardous emissions from powerplants, to allow EPA 
to delay implementation of its methane control rule, to overturn an EPA 
rule regulating greenhouse gas emissions from cars and trucks, to 
overturn an EPA decision to revoke a coal company permit that would 
harm the environment. This is not the record the American people want 
from a Justice likely to rule for decades on the most important 
environmental law cases.
  His record on matters addressing climate change is especially 
troubling. Climate change can hit minorities and low-income communities 
the hardest. In New Mexico, traditional land grant and acequia 
communities depend on the land to sustain their families. The climate 
change-induced drought we are experiencing in New Mexico and the 
Southwest threatens our way of life.
  If we are looking for a Justice who will put balance back into our 
campaign finance system, Judge Kavanaugh is not a likely candidate. He 
has been clear that he believes that money equals free speech. So it is 
a good bet he will not scrutinize Citizens United or the other Supreme 
Court cases that now allow unlimited, dark money to run roughshod over 
our campaigns and tear at the fabric of our democracy. Our campaign 
finance system is broken beyond repair. Unless we change the rules--
either through Supreme Court decision or congressional action and 
constitutional amendment--we will continue to see the kinds of perverse 
results we now see where a few superwealthy individuals and big 
corporations drown out the many. But we are pretty much assured that a 
Justice Kavanaugh will not change the rules that now allow unfettered 
dark money to pollute our elections.
  It is hard to overstate the importance of the Supreme Court 
nomination before the Senate. New Mexicans and the American people want 
a nominee who has been 100 percent honest, whose nomination is not 
tainted by credible allegations of sexual assault and misconduct. New 
Mexicans and the American people want a nominee who will act as a check 
on the powerful, but President Trump chose this nominee to do the 
opposite.
  At this critical point in our Nation's history--when we have a 
President who is under DOJ investigation for conspiracy with Russia to 
undermine our national election and obstruction of justice, who may 
have broken campaign finance laws to win the Presidency--we must have 
Justices on the Court who believe in the rule of law, who believe that 
no one is above the law, even the President. At this historic juncture, 
the American people must have assurance that any judicial nominee will 
hold the President true to our laws, true to our Constitution, but 
Judge Kavanaugh cannot give the American people this assurance, and I 
cannot support his nomination.

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