Mr. President, these are the big leagues for a Senator. Depending on how long you serve here, you get only a handful of opportunities to vote on the confirmation of a Supreme Court Justice. We may know how this is going to go tomorrow, but…
Mr. President, these are the big leagues for a Senator. Depending on how long you serve here, you get only a handful of opportunities to vote on the confirmation of a Supreme Court Justice.
We may know how this is going to go tomorrow, but many of us who have very serious concerns about the precedent that this confirmation creates for this country that we love are going to be here on the floor tonight--through the night--trying to implore our colleagues to think differently about this or at least think about how we can do this differently the next time around and how we can come to some common understanding as to what the rules of the game should be and what the standards should be when we are interviewing candidates for one of the most important jobs in the world, the U.S. Supreme Court.
I have a few things to say here tonight, as the hour gets late. I wanted to start by talking a little bit about what the standard is. What is the standard that we should apply when we are considering a submission from the executive branch to sit on the Supreme Court?
It seems to me as if this whole exercise has been conducted in a manner to suggest that, A, there is no one else eligible for the Supreme Court, other than Brett Kavanaugh, as if we live in an Adam and Eve world in which we have few, if any, alternative choices
and, B, that this body owes some significant and potentially binding obligation to the President when he makes his choice.
I just want to go back over the standard for a moment because it is not uncommon for the Senate to reject Supreme Court nominees who have been sent to this body. In fact, if you walk out the door on the other side of this Chamber and you hang a left, you will quickly come to the Senate Reception Room. In that room, there is a relatively freshly painted picture of Oliver Ellsworth and Roger Sherman. This is one of the newer portraits here in the Capitol, and it depicts two Connecticut delegates to the Constitutional Convention scheming over what would become called the Connecticut Compromise.
This is the breakthrough at the Constitutional Convention that establishes the Senate with two Members per State and the House of Representatives elected by proportion of population per State.
Oliver Ellsworth is a significant figure in the history of my State and in the history of this country but not only because of his contribution to the adoption of the U.S. Constitution; he also plays a significant role in the beginning of the American judicial system. He is the father of the American judiciary in that he authored, as a Senator, the first Judiciary Act, which established the Federal court system.
Then he plays another important role in the early history of the courts because when it was time for George Washington to nominate a second Supreme Court Chief Justice, the name he sent to the Senate was rejected. He sent his friend John Rutledge, but because his friend John Rutledge had played a fairly controversial role in the adoption of the Jay Treaty, the Senate voted Rutledge down.
Washington, not wanting to be embarrassed again, knowing that he needed the consent of the Senate to get someone into that role, picked one of the Senate's own. He picked Oliver Ellsworth, who was the foremost expert on the judiciary in the Senate. Oliver Ellsworth became the Chief Justice of the Supreme Court. His bust sits inside the Old Supreme Court Chamber here in the Senate today.
I tell that story only because it is a reminder that at the very earliest stages of the American Republic, the Senate decided to exercise its independent discretion when it came to choices for the Supreme Court by the President of the United States.
George Washington figured out very quickly that the Senate does not owe the executive automatic deference when it comes to the choices that are placed before the Senate. It is advice and consent. In fact, that practice of refusing to give complete and total deference to the executive has continued up until this day. From World War II until this moment, I think the number is seven selections by the President that ultimately did not get confirmed.
Sometimes the Senate gives a hint ahead of time that a nomination isn't going to go so well, and the President withdraws that nominee. Not in every case is there actually a vote before the Senate. Oftentimes, the signal is clear enough from the Senate that consent is not going to be given, and the administration withdraws that nominee.
Let's be clear that there is no binding obligation on behalf of the Senate to say yes to a nominee whom we believe to be flawed or wrong for the moment--no obligation on behalf of Members of the President's party and no obligation on behalf of Members of the opposition party.
Second, I have heard my Republican colleagues, ad nauseam, treat this selection as if we are a court of law with a defendant sitting in front of us whose freedom is going to be taken away if he doesn't get a positive vote for confirmation. Why do I say that? Because over and over again, I have heard this idea that Brett Kavanaugh is innocent until proven guilty, that there is a presumption of innocence with respect to the claims that surround him. Those are not traditionally terms that have been used with respect to the choices we make about nominees to the judicial branch or to the executive branch. Those are terms that are used in courts of law.
The presumption of innocence is given to a defendant. The high burden of proving guilt beyond a reasonable doubt is placed on the prosecutor because the stakes in a criminal trial are fundamentally different from the stakes in an appointment to the Supreme Court or to become the head of a department.
In a court of law, in a criminal court of law, the bar, the standard is set high because the consequence to that defendant is his liberty being taken away from him or her. That is not the case for Brett Kavanaugh or any other name that gets sent to this body for confirmation. If Brett Kavanaugh were not to receive a confirmation vote to the Supreme Court, he would go right back to the appellate court with a nice job and a nice salary, as would many other nominees who don't get a confirmation vote from this body. Their liberty isn't taken away. They go back to some pretty good jobs.
That is why it is nonsensical to suggest that the standard we apply here to a nominee is similar to that of a criminal court. We don't have to prove that reservations about a nominee can ultimately be held to the same standard as in a criminal court. Why? Because the consequences are lower but also because there are other people who can serve that role. You err on the side of caution often when it comes to nominations because the consequences for the country of simply moving on to the next nominee for a Cabinet post or a judicial job are, frankly, fairly low. The standard is not a criminal standard.
We have often talked about the fact that this is much more like a job interview. I think that is right. I don't think it is a perfect analogy. This is a pretty special and important job. There are some procedures around this job interview that we don't hold ourselves to when we are interviewing somebody for a position in our office. Let's all be honest with each other. If somebody showed up in our office looking for a position and their file looked like the file of Brett Kavanaugh, none of us would hire that individual--not a single one of us.
Tell me that a Senator would hire an individual who came to their office, who might have looked qualified, who might have a sterling resume, but whose file included several credible allegations of serious misbehavior. You probably wouldn't even go through the trouble of conducting an exhaustive inquiry into whether those allegations were true or not, as I think we had an obligation to do with respect to this case. I would argue, we had an obligation to do that investigation here because this is different from a job interview for a legislative assistant or a person who answers our phones.
Let's be honest that if those allegations were before us as employers, we wouldn't hire that individual. And we certainly wouldn't hire an individual who conducted themselves in the job interview in the same way that Brett Kavanaugh conducted himself when he came before the Judiciary Committee last week. It is much more like a job interview than it is a criminal trial. It doesn't neatly fit into either category, but we wouldn't hire that individual in our office because we know that there are plenty of other qualified applicants for the jobs we are looking for. Why take a chance on someone who might be fundamentally wrong for the position we are interviewing for?
I think it is important at the outset to get the standard right. The terminology that gets thrown around here as if this is a criminal trial just misunderstands the nature of the job that we have before us.
I want to turn to the arguments that I would use if I thought I had the chance to change the mind of some of my Republican colleagues this evening. That is probably impossible at this late stage, but we are here, so I might as well give it a try.
I agree with everything Senator Cantwell said about the jurisprudence of Judge Kavanaugh on the appellate court. I think he is a dangerous nominee because he does fall fairly far out of the judicial mainstream.
I heard Senator Collins on the floor earlier today talking about how she hoped that he would be a bridge between the two sides of the Court, how she thought that he might ultimately be someone who would lead to fewer 5-to-4 decisions being rendered on the Court.
She used as evidence of that hope a statistic that is curious. She talked about the fact that he voted with Merrick Garland 93 percent of the time
on the court. Brett Kavanaugh voted with Merrick Garland 93 percent of the time on the court because the appellate court in DC--as is the case with most appellate courts in the country--renders most of their decisions in unanimous form. All of the judges are agreeing with each other on the vast majority of cases. That statistic does not tell you whether Brett Kavanaugh is a bridge builder or whether he is an outlier.
Fortunately, there is another, more relevant statistic; that is, the percentage of times a judge dissents, who stands away from his colleagues, who has formed a consensus and rendered an opinion of his or her own.
No one on the DC Circuit dissented during Judge Kavanaugh's time on that court more often than Judge Kavanaugh. Some of those dissents were pretty creative dissents. Some of the things we are most worried about with respect to the friendliness of Judge Kavanaugh to corporate power, his distaste for regulation, comes from those dissents in which Democrats and Republicans--or, put better, judges appointed by Democrats and Republicans--on the DC Circuit found a way to agree, but Judge Kavanaugh stood over here with some novel theories of the case as to why regulatory bodies couldn't get into the business of big corporations.
The history in appellate court is not of being a bridge builder; it is of standing outside of that mainstream, challenging the consensus. That is who Judge Kavanaugh is going to be on the Supreme Court.
I will give you an example, something that is close to my heart. I had a lot of arguments in Connecticut about the future of gun policy in this country, just like we have a lot of arguments here. By and large, people in my State--even the folks who don't agree with all the things I would do if I were in charge of America's gun laws--generally think it should be up to us to decide. They might not think the Second Amendment allows us to pass a bill banning all guns in the country, but they think the question of who can own guns and what kind of guns can be sold is a question better left to legislature.
Brett Kavanaugh has a novel theory about the limits of the legislature's ability to regulate gun ownership. It is a theory that even for him is pretty far outside of the mainstream. He actually laid it out for the Judiciary Committee in a series of questions and answers with the ranking member. He said: Listen, I think if a gun is in the commercial space, the Constitution grants it permanent protection. His argument is that once a gun is sold privately, you can never ever ban it. That is ridiculous. That is not how any courts have read the law prior to this time.
This Congress has regularly made the decision that some weapons are not proper for commercial sale and have pulled them out of the commercial market. In the 1930s, Congress decided that automatic weapons that were out in the streets--the so-called Tommy guns--should come out of the commercial market. In the 1990s, we made the decision that assault weapons--the semiautomatic tactical weapons--should be restricted. Kavanaugh says: No, once a gun is sold privately, you can't ever take it back, no matter how dangerous. No matter how dangerous it becomes, no matter the mistake that Congress thinks it might have made in legalizing that weapon, once it is out there, you cannot take it back--so says the Second Amendment. It is a radical idea, as is his theory of the case on abortion rights.
We can talk about the case that came before his court in which he denied the ability of a young immigrant woman to seek an abortion despite the fact that she fit all the other legal requirements for that procedure, or we could just look to the fact that in his testimony, he parroted the political jargon of the anti-choice movement. He used phrases that courts don't use when talking about the issue of abortion or reproductive healthcare. He used the phrase ``abortion on demand,'' which is a ridiculously politically loaded term. I have no idea what that means, but it is a term that is regularly used by the anti-choice political movement. You can't get an abortion from a vending machine, but that is what the phrase ``abortion on demand'' seems to suggest exists in the world, and Judge Kavanaugh used it.
He also called birth control an abortion-inducing drug, which it is not. Simple science can serve to explain that birth control certainly can prevent a pregnancy, but it does not cause an abortion. But Judge Kavanaugh used that term in his confirmation hearing because it is part of the political opposition. It is part of the basket of propaganda that gets used to try to pull down protection for reproductive choice around the country.
I share many of the reservations that my colleagues have expressed when it comes to Judge Kavanaugh's record on the Second Amendment, Judge Kavanaugh's testimony before the Judiciary Committee in his first hearing on the issue of reproductive choice, as well as the reservations many of my colleagues have about what he will do to the Affordable Care Act.
I will concede that his writings on the Affordable Care Act are limited. He has expressed some hostility to the Affordable Care Act. He said in one of his decisions that if the Congress could go so far as to require people to buy healthcare, there was no limit to the potential reach of Congress's power.
On this one, I take the President at his word. The President said he would never make the mistake George Bush did in appointing someone to the Supreme Court who would uphold the Affordable Care Act, as John Roberts did. He promised he wouldn't make that mistake again. On this one, given the over-the-top, incessant, persistent hostility the President has expressed for the Affordable Care Act, I trust he has made good on his promise and that he has sent someone to us who is going to work with him to try to unwind the Affordable Care Act.
I was an early opponent of Judge Kavanaugh's. I didn't wait very long to express my opposition because I see he is so far out of line with Connecticut values that he is not going to be a judge in the model of those true centrist judges who maybe I didn't agree with on issue after issue but I thought gave each question before them a fair look.
I also don't think that is my best case with my Republican friends because you feel differently about the Affordable Care Act and about the Second Amendment and about the issue of choice than I do. It is probably not the best tactic at 1 o'clock in the morning to try to convince you to vote against Brett Kavanaugh based upon his conservative, I would argue rightwing record as an appellate judge. So let me try some different arguments out on you. Some of these will have to do with process. Process is important. Process is important because it is kind of all we have. When it comes down to it, democracy holds together because of a set of rules we all agree to follow. It is called the rule of law, broadly.
In this place, it is a set of precedents and traditions that have held up pretty well over 240 years. As those precedents and traditions start to fall, so do the edges of democracy itself. I know to some it feels like insider politics--beltway jargon--to be talking about the process we have gone through here, but there are some important precedent-shattering decisions that have been made by the majority with respect to the Kavanaugh nomination.
The first is the documents surrounding Brett Kavanaugh's candidacy. As many of my colleagues have said, we have seen somewhere around 6 percent to 7 percent of all the documents relative to Brett Kavanaugh's time as a judge and as a staff person in the executive branch. We have seen a small slice of those documents. I think the 7-percent number applies to the documents relative to his time in the White House.
I listened to Senator Lee earlier tonight talk about the fact that it wasn't his fault that we didn't see the documents because those are in the possession of the administration, and the Bush administration and representatives of the Bush White House are making the decisions about what documents Congress can see and can't see independently of Brett Kavanaugh.
That is not true. The individual who is overseeing the decision about which documents Congress can see and can't see is a close confidant, ally, and colleague of Brett Kavanaugh's. In fact, 2 weeks ago when the nomination of Brett Kavanaugh was thrown into doubt and the White House convened a war room--a war room of Judge
Kavanaugh's most loyal, trusted advisers--the individual who was vetting the documents for the Bush White House was in the war room. This was not an independent exercise of discretion on behalf of the Bush White House; this was one of Judge Kavanaugh's primary backers making decisions on which documents we could see and which ones we couldn't. This was a political job.
We are left to wonder why we get so few. What is in those other documents that were so explosive that you had to put a political ally of Brett Kavanaugh's in charge of the disclosure of those documents and give us so few?
Here is why the process matters. Once you have made the decision that you are going to create a structure by which you withhold evidence that would be relevant to the decision the Senate makes because--well, just because--it becomes the new rule. I am not here to say what goes around comes around; I am telling you that once you make the decision that ``You don't need to see evidence on a particular nominee because we are not going to give it to you because we think it might be damaging,'' that becomes the new rule. Then, all of a sudden, there will become a day when my friends on the other side of the aisle want evidence they are not getting either. The withholding of documents really matters. If we can't make sound decisions, then this whole institution becomes weaker.
Second, I want to move to last Thursday's hearing. I think there is also some precedent-shattering decisions we are making in the wake of what was a stunning performance by a nominee before the Judiciary Committee.
Let me talk about the lies.
I believe Dr. Ford. I think she was credible, thoughtful. Everything she said in that hearing seemed to be an effort to try to get to the truth. I, frankly, don't know whether Judge Kavanaugh wasn't telling the truth or legitimately doesn't remember what happened because he was so intoxicated.
I can set aside the question of whether Judge Kavanaugh was telling the truth about that particular assault and still have serious concerns about all of the other smaller lies he told during the testimony.
I understand some of the stuff that came up was embarrassing to him, some of these terms and phrases. Yet he was asked the questions, and no matter how embarrassing it was to talk about what boofing is or what a devil's triangle is, he was obligated to tell the truth, and he didn't. We have plenty of corroborating evidence to suggest that he and his friends knew exactly what those terms mean, knew exactly what they were referring to with respect to the young women with whom they were part of an alumni club.
I know it sounds trivial to be talking on the Senate floor about words and phrases that high school kids were using. The fact that they were using those terms, said certain things when they were kids, doesn't bother me at all. What bothers me is that a nominee for the Supreme Court has such a casual association with the truth that he couldn't admit to us what were some embarrassing admissions and lied instead.
The precedent of letting a nominee get away with that--even if you don't believe he told a big lie, even if you only believe the mistruths were on the smaller things--is another precedent-shattering decision, because all of a sudden, we send the message to people who want to apply for the most important jobs in the world that telling the truth is not that important.
I get it. The cat is out of the bag. The horse has left the barn. I get it that the top of the Pandora's Box is open. We have a President of the United States who doesn't tell the truth every single day. We have a President of the United States who goes on Twitter and makes up stuff about U.S. Senators. Our bigger problem is not the small mistruths--the potentially small mistruths of Brett Kavanaugh's; our bigger problem is that we have a President who literally can't get through a day without making up something.
That sends a worse message to our kids than the mistruths of Brett Kavanaugh, but, nonetheless, the Supreme Court is the Supreme Court. It is a lifetime appointment. At least if an Executive gets into office and starts making stuff up, we can get rid of him or her after 4 years--not the Supreme Court. You send somebody up to the Supreme Court who fibs, and that individual is there forever. Thus, maybe our standards should be a little bit higher.
Third, I want to talk about Judge Kavanaugh's disposition in that hearing and some of the things he said about how the allegations came forward. I talked about this on the Senate floor, I think, now 2 days ago. So I will not repeat it all. But his belief that Dr. Ford's allegations or Ms. Ramirez's allegations came forward as part of some vast conspiracy led by progressive groups and Democratic Senators on behalf of Hillary and Bill Clinton is delusional.
I understand that politics in this town are rough. We have all been subject to character attacks we think are unfair, but that doesn't mean there are these vast cabals of people on the left and the right wing who are out there spinning tales on a daily basis about each other.
What we know is that Dr. Ford brought this forward to her Member of Congress before Brett Kavanaugh was even the nominee. What we know is that it got leaked to the press, likely by somebody who didn't have an interest in Brett Kavanaugh as a nominee, but not by a Democratic Senator.
What we know is that the allegations that followed came out as a consequence of that first allegation. There is zero evidence that there is some grand conspiracy of Democrats in league with the Clintons to try to bury Brett Kavanaugh.
Further evidence of that is that if that were our MO, why did we wait a year and a half to employ it on Brett Kavanaugh? If Democrats' method of operation was to gin up a whole bunch of false allegations about individuals and make accusations about sexual assault that weren't true just to muddy them up and smear them, why didn't it occur to Neil Gorsuch who, frankly, engendered much more hostility among many of our friends and backers, because that was the seat that we believe was stolen from Merrick Garland. Why didn't we gin up those kinds of allegations about the President's early nominees to the Cabinet who, frankly, spun up a lot more grassroots anger than Brett Kavanaugh did in the summer of 2018?
The answer is because this wasn't a conspiracy. This wasn't a whole bunch of Democratic Senators sitting around. These allegations came out organically, and whether or not you believe they are true, to go before the Judiciary Committee as a judge and make the allegation that there is a conspiracy including Democratic Senators against you, when you have no evidence for it, tells us all we need to know about your fitness to serve on the Bench.
If you are making things up in order to fit the narrative that you think will be most helpful to make your case before the Senate, why would we think that you wouldn't do the same thing on the Court, which leads me to the most troubling passage of his testimony, and I heard Senator Lee launch a defense of it. I have heard others launch a defense of it, but I watched it again before I came down to the Senate floor just to make sure that I had it right.
At the end of his diatribe against Democrats, at the end of this description of a Clinton-connected conspiracy that he believes is launched against him, he uses this phrase--and I am paraphrasing the beginning of this. He says: As we all know in the political world of the early 2000s, ``what comes around, goes around.''
Now, I listened to it again today just to make sure that that wasn't a lead-in to some other thought, and it wasn't. He starts a new thought after that. He starts talking about how he is a generally optimistic guy.
The passage about the conspiracy theory and about how badly he has been treated by the Democrats ends with a punctuation point right before which is the admonition ``what comes around, goes around.''
There is little way to read that other than as a threat to those who are going to oppose him in the Senate and to those political interest groups outside the Senate who are working to oppose him.
I don't think I am making too much of this, and I know that last night in
the Wall Street Journal Brett Kavanaugh wrote a somewhat apologetic op- ed in which he said that he might have gotten a little bit too heated at times in the hearing. He didn't specifically refer to which statements he would take back, but that line--``what comes around, goes around''--and those allegations about this dangerous Democratic-led conspiracy theory weren't statements that he just came up with in the heat of the moment. Those were statements in his prepared text. Those were statements that he wrote down on paper, thought about overnight, thought about again as he listened to Dr. Ford's testimony, and then read before the Judiciary Committee: ``What comes around, goes around.''
How does any petitioner who is aligned with any of the groups that Judge Kavanaugh might think was involved in the political opposition to his candidacy have faith that they will get a fair audience before the Supreme Court when Judge Kavanaugh is on it? Do you really think, given how angry he was, given what he believes was organized against him, that he is going to fairly give causes aligned with Democrats a fair shot before the Court? Do you really think he now can say that he will be a neutral-colored umpire as a Supreme Court Justice?
Here is why this is a precedent-breaking decision that we are making. In the past, we have actually put political people on the Supreme Court. We have. Centuries ago we selected people for the Supreme Court who had actually served in political positions. That was at a time when our politics was, maybe, a little bit less heated, where there was more opportunity for common ground. But in recent times, that has not been the way in which we have selected people for the Supreme Court. We traditionally select jurists.
There has been in the American public this belief that even in a super politically charged time, there are at least nine people who are above all of that, who are above the regular partisan barbs and allegations that we tend too often to throw at each other. Those nine people are on the Supreme Court, and that is really important, because once the American public starts to think that the Supreme Court is just another political arm, that is the day when the rule of law really starts to fall apart.
That is why nominees to the Court are so careful not to unveil any political bias, even if they may have one, because they don't want to shatter that image that the American public still has, by and large, that at least those nine people are immune from the political biases that we hold here in the Senate.
Well, that belief has been forever compromised because Judge Kavanaugh has told you his political bias. He has told you what he thinks of Democrats, and now he is headed for the Supreme Court.
Senator Lee spent some time earlier this evening talking about Federalist No. 78. Senator Lee is not the only one who has read Federalist Papers.
Federalist No. 78 is an important one. It is where Hamilton lays out the importance of seeing the judiciary different than the legislative body, and Senator Lee got it right. He talks about the judiciary exercising judgments, whereas the legislature exercises will. That is a good way to think about the difference between the two.
Yet inside Federalist No. 78 is another idea that is really, really important. What he says inside that document is this. Hamilton says:
I agree, that ``there is no liberty, if the power of
judging be not separated from the legislative and executive
powers.'' And it proves, in the last place, that as liberty
can have nothing to fear from the judiciary alone, but would
have everything to fear from its union with either of the
other departments. . . .
Hamilton is saying in that edition of the Federalist Papers that the judiciary is the weakest of the three branches because it doesn't have the power of the sword as the executive does, nor the power of the purse as the legislative branch does. Though he admits that the judiciary can overrule an act of Congress and that gives it power, he suggests that so long as the executive is independent and is not a tool or a part of the legislative branch or the executive branch, we have nothing to fear.
Now, he doesn't lay it out in as explicit terms as I might today, but what he is essentially saying is that the judiciary has to be apolitical. As long as it is apolitical, you have nothing to worry about because it doesn't have some of the inherent powers of the branches in article I and article II.
We have broken through that wall in the nomination of Brett Kavanaugh. By making these blatantly partisan allegations, by associating himself in his confirmation hearing so clearly with one side of the partisan fight inside the U.S. Congress, he has now brought at least his seat on the Supreme Court that much closer to one of the two departments that Hamilton feared would ultimately become joined.
Alexander Hamilton spent a lot of time thinking about the importance and writing about the importance of an independent judiciary. Brett Kavanaugh, by jumping into the political fray, by translating his biases, has started to break down that wall.
Now, I don't want to be apocalyptic about this. Maybe what I am suggesting is that it just is going to make it a lot easier to put more people on the Supreme Court who are more and more political, ultimately continuing to tear down that wall.
Lastly, I want to talk for a moment about the investigation that took place regarding some of these allegations.
One of the precedent-shattering decisions that was made was the decision on behalf of the majority to do no work to try to figure out whether those who were making these allegations were telling the truth, beyond a hastily scheduled hearing in which only two witnesses were called, as compared to the Anita Hill hearings, where there were over 20 witnesses called. It was a sham of a process. That is not too strong a word. There was not an attempt to get to the truth. There was an attempt to provide cover, to make it look as if the Senate was having a fair hearing.
There was also no intention to do what had been done back during the Clarence Thomas nomination--to have the FBI go out and gather some facts for themselves.
It was only because of a last-minute demand by a handful of Republican Senators that the FBI went out and conducted an investigation but was given only 1 week to do that investigation.
There is reporting in the New York Times today that suggests that the White House intentionally limited the scope of that investigation, but, frankly, I didn't need the New York Times to tell me that that is how this went down. I read the report, and it was very clear in that report that the FBI could do some things and couldn't do other things.
This is not me telling you this. I am referring to independent reporting that only eight people were actually interviewed, and there were clearly some subjects that were off limits in those interviews and some things that would have been very important for Congress to know that we cannot know because those interviews only went so far.
Now the Times is reporting that that was intentional. In fact, the Times reports that the President's Chief Counsel told the President that if there was a full investigation of all of the claims and all potential claims around Judge Kavanaugh, it would be very bad for his nomination.
So I think the FBI do good work, but not when they are given unfair parameters around their investigation. That, in and of itself, is another precedent-shattering decision, constraining the FBI when they are trying to go out and gather facts for us.
Yet another precedent-shattering decision was the way in which we were allowed to see the report. It was one of the most humiliating things I have ever gone through as a U.S. Senator--to sit in a secure room with 10 of my other colleagues, with 60 minutes to review a document, look at it, digest it, and ask questions about it. The scene was chaotic.
We are sitting there with a bunch of our colleagues, trying to share different pieces of the report: I will read that page. You read that page. Wait. Did I read page 6? Wait. Do you have page 7? Oh, boy, we have to get out of here because we only have 60 minutes.
It was not becoming of the U.S. Senate, and it didn't have to go down like that. It would have been easy for the
Senate majority leader to work out an arrangement with the White House to have more than one copy of the FBI report. And, of course, the Senate leadership could have given us more than a half day to review that report.
Neither of those things happened, and they have consequences because the next time there is a complication, there is incentive to do the same thing again--to rush a nominee through the process.
I have with me a statement from a gentleman by the name of Keith Koegler. This is a statement that comes to the Senate from Christine Blasey Ford's lawyers. It is a statement of an individual whom the FBI did not interview. This is a friend of Dr. Ford's who had conversations with Dr. Ford prior to Judge Kavanaugh's nomination regarding the allegations of assault that Dr. Ford told the committee. One of the things he says here is that he has a copy of an email thread ``between Christine and me'' in which he made it clear that Brett Kavanaugh was the judge who assaulted her as a teenager.
He says: ``We exchanged those emails . . . two days after Justice Kennedy's retirement announcement, before there was a shortlist for his replacement.''
He is submitting this to us so that we can put it in the Record, given the fact that it was not included in the FBI's investigation, because they never came and interviewed Mr. Koegler.
Mr. President, I ask unanimous consent that this document be printed in the Record.
Mr. President, this is just one piece of evidence that none of us saw prior to this moment that would have provided important back up to Dr. Ford's testimony. I don't know why this person wasn't interviewed who can testify that Dr. Ford told him of this abuse before Judge Kavanaugh was placed on any shortlist.
I don't know if the FBI made their own decision not to talk to this individual, whether they were time-limited so that they were unable to get to him or whether the White House told them whom they could interview and whom they couldn't, but this would have been really important information for us to have beforehand.
I will end where I ended the other day. All of these decisions that have been made, I think, have long-term consequences for this body. I am not saying that we can't recover from this. We are all adults. I do believe that everybody here in the Senate believes in this place and wants it to be better. I don't run into many people on either side of the aisle who are having a lot of fun these days, given the fact that we can't get along on almost anything except for the budget, which is not insignificant.
So I have to trust, as a relatively new entrant to this place, that we can
do better, that we can try to learn from what has happened here. The damage has been done at this point to survivors of sexual assault who are going to be thinking twice about coming forward because they are not going to be believed. The damage has been done to the precedent surrounding nominations to the judiciary. The damage has been done to the idea of objective truth and the belief that folks who are applying for important jobs should tell the truth. But I have faith that we can learn from what happened here and try to be better the next time.
Ultimately, what I think about a lot and what I have thought about a lot these last few weeks is this: Why Brett Kavanaugh?
I come back to where I began. At the outset, I said that our standard should be educated by the fact that there is not one person in the world, in the United States, who is qualified for this job. There are lots of them. So if you have serious doubts or reservations about an individual, you can move on to the next person. That is what George Washington did when John Rutledge was rejected by the Senate. He had somebody else who was great in reserve--a great early American, Oliver Ellsworth.
There are, no doubt, other conservative jurists who would probably fulfill most of the jurisprudential aims of the Republican majority just as well as Brett Kavanaugh. It can't be because Brett Kavanaugh is the essential man.
So given all of these doubts, given all of these allegations, given his precedent-breaking performance before the Judiciary Committee, why stick with Brett Kavanaugh? This is what I come back to when I try to answer that question for myself.
I know that it is hard being a Republican today. Your party doesn't look like it did 10 years ago because you have a President who really doesn't have an ideological core. He doesn't have a set of beliefs. He is a cult of personality. He makes it up as he goes along. So it is difficult being a Republican in Congress today because the party is just fundamentally different than it was 5 years ago, and there is very little that binds together a President without an ideological core and Republicans in the Senate who do have a set of beliefs that they are fairly regularly consistent about. I know that is uncomfortable. So I fear that the reason the Senate Republican majority is sticking with Brett Kavanaugh is because the one thing on which can agree with this President is your antipathy for the Democratic minority.
There is this theme--this phrase on social media--that gets used by the right, called ``owning the libs.'' It is the idea that you win if you dominate your opponents. Winning isn't about passing a bill. Winning isn't about doing something good for the country. Winning is about owning your political opposition.
I worry that is what this is about--that we are sticking with Brett Kavanaugh even with all of these problems and questions that surround him because the worry is that to give up on him and move on to somebody else would be a show of weakness and would be interpreted as a victory for Democrats. The one thing that binds together congressional Republicans and this President is an unwillingness to give Democrats any perception of victory.
Now, it wouldn't really be a victory for Democrats because we know there would be another conservative Justice--maybe, one even more conservative than Brett Kavanaugh--who would be coming down the pike. But maybe in the short term, it would be scored that way, and thus, it becomes unacceptable.
It is sort of the definition of power politics--dominance no matter the cost, no matter the policy implications, no matter the precedent. I might be wrong about this. It may be that my colleagues just feel like Brett Kavanaugh is telling the truth on everything, down to the definition of some of those terms, or maybe they see a talent in him that is unique that the rest of us don't see.
But I worry that what matters in this place these days is just winning, and I worry about that for Democrats too. I worry that ultimately what drives us when we get up in the morning in Washington, DC, these days is just beating the other side--that it is just a game, that it is just an athletic contest, and that we have become what the news media and the cable shows want us to be, a sporting event.
I think that of late my Republican colleagues have been more guilty of this than Democratic colleagues. I have that bias, I admit it. I am allowed to have it as a partisan, but I believe it exists on both sides of this body. This, I would argue, is just the worst episode of that desire for political dominance and something that we should all, in the wake of this nomination, step back from and think long and hard about.
I yield the floor.
I suggest the absence of a quorum.