Executive Session

Floor Speech

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Mr. CORNYN. Mr. President, I wanted to come to the floor and talk for a few minutes about the unfortunate circumstances we find ourselves in as a result of the failure of the Ranking Member of the Judiciary Committee to submit a letter that she received from--in this case, we now know--Dr. Ford to the background investigators, who are bipartisan, who would have investigated this matter during the normal course of the confirmation process in a way that protected the anonymity and confidentiality of Dr. Ford, as well as the nominee.

As the Presiding Officer knows, having been a longtime member of the Senate Judiciary Committee, frequently during the course of a background investigation, we will learn things that Senators will want to ask the nominee about, but some of them are so sensitive and, frankly, some of them involve allegations we just don't know whether there is any basis to them or not. So they are handled in a particularly careful manner by the background investigators, and they are not generally made available to Members of the Judiciary Committee staff because they are so sensitive and potentially embarrassing. Frankly, we just have to get to the bottom of them, but we want to do so in a way that is respectful of both the person making the accusation as well as the nominee.

Unfortunately, none of that happened here because we now know that the ranking member, our friend Senator Feinstein, sat on this letter for some 6 weeks. Then, after the hearing, after all the thousand-plus questions for the record, after being able to examine not only the nominee for 2 days--over a long period of time--having gone through an FBI background investigation, as well as a bipartisan background investigation by the Judiciary Committee staff, this letter comes out in a way that, frankly, puts Dr. Ford in an uncomfortable position but also has consequences in terms of the nominee.

Many of us saw last night Judge Kavanaugh talk about the impact of this accusation that he denies ever occurring, its impact on his children, on his marriage, and on his reputation. This is not something any of us should welcome or take lightly, especially when there is an alternative, which would have protected Dr. Ford and the nominee and allowed us to get to the bottom of this accusation before it would ever have the potential of becoming public.

I just don't buy this idea either that if you are a man, you are on one side of this argument when it comes to accusations of sexual misconduct, or if you are a woman, you are on the other side. All of us have mothers. We all have fathers. Many of us have brothers and sisters. Many of us are fortunate enough to have daughters, as I do. I want to make sure my daughters, my wife, and my sister are treated with the dignity and respect that they are entitled to were they to be so unfortunate as to be caught up in a situation where they were a victim of sexual misconduct by a man. Conversely, this idea that just because you are a man, you are presumed to be guilty because somebody makes an accusation without presenting any evidence to support that accusation strikes me as being uniquely antithetical to our constitutional system and our sense of what is fair play. I will talk about that more in just a second.

I am very proud to support the nominee, Brett Kavanaugh, for the U.S. Supreme Court. I have had the fortune to know him since about 2000. He is an exceptional nominee by all respects. I, along with the majority leader and others, think it is a disservice to him, as well as to our courts, as well as to the Senate and the confirmation process for us to sit idly by and allow our colleagues across the aisle to blow up the normal process and to denigrate the reputation he has spent a career to build--especially, without solid evidence.

Again, we all feel sympathy--we should--for people who claim sexual assault. We owe them an opportunity for a fair chance to tell their story and to produce evidence, and we have recourse in our courts of law and elsewhere when those sorts of serious accusations are made.

But we also need to consider both sides of the equation. We need to consider the impact on the nominee--somebody who served more than 12 years as a judge on the DC Circuit Court of Appeals and, before that, worked for the President of the United States in the White House Counsel's Office. His public service required him to go through not one FBI background check but six FBI background checks, and he passed all of them with flying colors. Never before in any of those six background checks has this accusation been lodged. Not once in his long career has there been any allegation of improper conduct on the part of Judge Kavanaugh toward women--not once--other than this allegation.

As I said, as we think about what a fair process is--and Judge Kavanaugh talked about that last night--we need a fair process. We need not to assume somebody is guilty because an allegation has been made.

Frankly, in the criminal law context, we wouldn't want to give the government that much power to be able to deny us of our liberty, our property, or even our life by just an accusation, without requiring credible evidence to be presented in order to prove it before an impartial jury or judge. This is a constitutional principle--a bedrock constitutional principle--of our form of government.

It is very disturbing, and it is dangerous to hear some of our colleagues try to turn that principle on its head and say it is up to Judge Kavanaugh to disprove the allegations. He said it never happened. How could he possibly disprove the allegation when he said it never happened?

Well, that just shows the extent to which I think we have gotten off track in this confirmation process. We have already heard an awful lot about the judge. By all accounts, he is well qualified, according to friends, mentors, law clerks, attorneys, and professors. Everybody who testified about his nomination considered him to be a man of integrity, and I believe that personally to be the fact.

So it ought to trouble all of us--notwithstanding this orderly, respectful process by which the Judiciary Committee conducts background investigations, including accusations like the one being made by Dr. Ford--when that emerges at the eleventh hour. It makes no sense in terms of what we know about the nominee. It doesn't fit the picture. When something is alleged that is so completely out of character for what we do know about the nominee, it ought to strain our credulity. I, unlike some of our colleagues across the aisle, do not believe we should rush to judgment and simply assume the worse.

Of course, the other attribute of a fair process would be an impartial judge or somebody who hasn't already made up their mind. We know that is not the case among our Democratic colleagues. The minority leader said he would do everything in his power to stop the nominee long before this accusation came up, and I believe none of the Democrats on the Judiciary Committee would have supported the nominee even before they knew about this allegation.

That is not a fair process. They are not a neutral observer or an impartial arbiter of the facts. They are more than happy to embrace thinly sourced allegations--even character assassinations--based on shreds of evidence, if you can dignify it by calling it that.

But that is not an approach that I think we should support. It is certainly not an approach I can support. I don't think it is a process anybody in the Senate or any American should support. It is shortsighted. It is narrowly focused and wrong.

I once told a friend that when the facts no longer make a difference in an argument, I am going to look for a new line of work. But the facts do matter, and these are the facts. Right now, we have one primary allegation regarding Judge Kavanaugh, and then another one that just popped up in the last day or so that I will talk about in a moment. Americans are all too familiar now with the misconduct that one person claims occurred more than 35 years ago. It is really hard to reconstruct things that happened 35 years ago. I think we all know that from our common experience.

I wonder if anybody within the sound of my voice could answer me: What were you doing 35 years ago on a given day in a given month at a given time? Could you reconstruct, in your own memory, what you were doing at that time and on that date and where you were and who you were with?

We also have to bear in mind that Judge Kavanaugh has said that this alleged incident, simply, did not happen. He said so under penalty of felony. In other words, if you lie to the FBI or if you lie to Congress during the course of a background investigation or in testimony to Congress, that is subject to a criminal penalty. Now, because Dr. Ford didn't go through the normal background investigation, she has not had to give evidence to the committee or to the Congress under that same penalty of perjury. Judge Kavanaugh has, but she hasn't. Yet she will have that chance this Thursday.

I firmly believe that a fair process means that both the accuser and the accused should be required to provide information to the Congress-- to the Senate and to the Judiciary Committee--under the same conditions. In other words, if one witness testifies under oath, then both witnesses should testify under oath. If one witness is subject to a penalty of perjury for lying, then both witnesses should be subject to a penalty in the event of perjury for lying. That is another attribute of the fair process that Judge Kavanaugh talked about last night.

We can't ignore the fact that, so far, no one else has corroborated Dr. Ford's statements and that she herself concedes she told no one about this alleged incident, not even a friend or a family member, until 2012 and, only then, without mentioning Brett Kavanaugh's name. The Judiciary Committee's investigators, as you would want and expect, have already been in touch with the four other people who Dr. Ford claimed were involved in this incident, and all four have denied having any knowledge of this event. That is a fact. You can't ignore it. You shouldn't ignore it. That is something we ought to consider as part of a fair process.

Nevertheless, we have really done everything we possibly can. We have acceded to every reasonable demand that has been made by Dr. Ford and her lawyers to give her the opportunity to be heard. We welcome her testimony, and we will listen to her at the hearing that has been scheduled for this Thursday. We welcome her participation, but we insist on a fair process--a fair process to her and a fair process to the nominee--one that allows her and Judge Kavanaugh to testify: to explain, to justify, and to corroborate if they can. Again, one of the hallmarks of a fair process is the presumption of innocence. This presumption of guilt, based on an unproven accusation, is un-American. It is absolutely foreign to who we are as a country and the sort of process demanded under our Constitution for people who are accused of serious misconduct.

So far, this process has been patently unfair both to Dr. Ford and to Judge Kavanaugh because the ranking member sat on this letter for 6 weeks and didn't submit it through the regular background investigation process that would have protected Dr. Ford and her confidentiality while it was being pursued. Now, as a result of the way this was handled by the ranking member, her letter, which she requested to remain confidential, and her complaint, which she requested to remain anonymous, was leaked to the press, and a media firestorm ensued. I am confident this is not what Dr. Ford wanted when she sent that letter to our ranking member on the Judiciary Committee.

It is important that Dr. Ford be given the chance to talk about what she believes happened to her. We are in the middle of an important national conversation about sexual assault and how certain people in positions of power wield their influence to coerce and intimidate women in the workplace and at large. This is a long overdue conversation, but we can't let the pendulum swing so far as to deny the accused his or her basic rights.

The Judiciary Committee, as I said, is no stranger to these sorts of allegations as one of our own Members stepped down during this Congress after he acknowledged his own misconduct. Yet, if, as Judge Kavanaugh says, the conduct in question never occurred, he shouldn't be used as some sort of sacrificial lamb on behalf of larger causes and concerns to which he is in no way attached or implicated. That would be unjust. That would be the opposite of fair. It would also establish a terrible precedent for nominees in moving forward. We can't and we shouldn't let that happen.

I believe Chairman Grassley, the chairman of the Judiciary Committee, has done an extraordinary job under very difficult circumstances. He has been extraordinarily gracious in trying to accommodate Dr. Ford. That is what we all have wanted even after her legal team has ignored offers and deadlines over the course of the last week.

I have to be honest, though. Some of the tactics that have been waged so far make me wonder whether Dr. Ford is still in control of her own story and her own circumstances. It makes me wonder whether she is being exploited by a political cause and whether her handlers and some of her supporters truly have her interests at heart. I wonder this particularly given that, after insisting this sensitive matter be treated confidentially, the letter--in the possession of our colleagues on the Democratic side on the Judiciary Committee--was leaked to the media, and Dr. Ford was forced to go forward publicly. Remember that the reason our friend, the ranking member from California, said she withheld this allegation until the very last minute was to protect Dr. Ford and to respect her request for anonymity. Yet that was then trampled on, ignored, and her wishes betrayed when this letter was leaked to the press.

Again, this is a particularly troubling matter, but one of our colleagues on the other side of the aisle on the Judiciary Committee has gone so far as to suggest that Judge Kavanaugh doesn't deserve the presumption of innocence, that just because a 35-year-old allegation was made, we must presume he is guilty. She said she believes that not because of anything to do with his reputation for honesty or truthfulness or anything about the facts; she said it is because of the way he conducts his judging, the way he approaches cases.

This is an extraordinarily disturbing statement, and I think it should be to all of us--this idea that he is denied what is a constitutional right, when an accusation is made of a crime, because of the way he performs his job as a judge, deciding cases. That ought to disturb all of us. I hope our colleagues will approach Thursday's hearing with more open minds than, apparently, she will.

As I mentioned a moment ago, it is true that now there is a second allegation that has been reported against Judge Kavanaugh. It stems from the New Yorker article that was published a couple of days ago, but, obviously, it does not hold up to scrutiny. You don't have to take my word for it. Just ask the New York Times. The New York Times looked into it and conducted dozens of interviews. It tried to find anybody who would corroborate this allegation, and it wouldn't touch it because it couldn't get anybody else to say: Yes, that is what happened.

One journalist said on the air that Democrats sought out this second woman and essentially convinced her to make an accusation against Judge Kavanaugh. According to the story, no one the accuser knows has corroborated her claim. That is why the New York Times wouldn't report it. They interviewed several dozen people. They looked really hard. You can imagine how hard those reporters looked to find somebody--anybody-- who would corroborate this allegation, but they couldn't find anybody. What they found was that the accuser herself reportedly told others that she was not sure if the perpetrator was actually Judge Kavanaugh. She told others with whom she was talking about possibly corroborating her accusation that she was not sure it was Judge Kavanaugh.

Now this information has been distributed to the press and around the country in a way that really is extraordinarily shameful. I don't say this often, but good for the New York Times. Thanks for upholding a modicum of journalistic integrity by not reporting this uncorroborated allegation in which the person who was making the accusation said: I may have the wrong guy. Shame on the New Yorker and others who have published this junk journalism.

As he said, Judge Kavanaugh is not going away. Despite the allegations made against him, which he says are false and did not happen, despite the smear campaign on his reputation as a person of integrity, despite the threats made against him and his family, he said he will not be intimidated into withdrawing, and he vowed to defend both his integrity and his good name before the Judiciary Committee this week.

As the delay tactics continue to play out and as the news stories continue to pile up, let's not lose sight as to why Judge Kavanaugh was nominated in the first place--his qualifications and the respect that he enjoys from all of those who have interacted with him professionally and personally. His work has been praised by legal practitioners and scholars alike. He has been unanimously affirmed by the Supreme Court on numerous occasions. During his grueling week-long confirmation hearing, he showed the kind of poise and seriousness befitting of the high office to which he has been nominated. He fielded many, many questions from Republicans and Democrats, and he responded to all of them truthfully, articulately, and graciously.

While it is easy to be distracted by the latest irresponsible, unsubstantiated allegation, we need to put that in a larger context. Surely, these allegations cannot be viewed in isolation nor can the fact that our colleagues across the aisle previously questioned Amy Coney Barrett for her Catholic faith. Judge Kavanaugh is a practicing Catholic as well. Amy Coney Barrett, who had been nominated for the Seventh Circuit, was actually told in the questioning of her Catholic faith that the dogma lived loudly within her, which suggested somehow that because she is a practicing Catholic, she could not be confirmed to the U.S. Court of Appeals for the Seventh Circuit.

We don't have religious tests in this country. No matter what your faith or background or absence of faith in a higher being, we should not be attacking nominees for their religions or their faiths or their lack of faith. We should be confirming good nominees who can apply the law and the Constitution as written. Yet I think it is important to put the Amy Coney Barrett questioning and statement in this context, given the background and faith of this nominee.

We will try our best to get to the truth this week. We will listen carefully, but we will remember all of the evidence, and then we will vote on whether to confirm Brett Kavanaugh to the U.S. Supreme Court.

Our Democratic colleagues have dragged this out long enough. There will be no more delays, and soon it will be the time to vote. I say to my friends, we will hear from Dr. Ford. We have done our best to accommodate her and to give her a safe place where she can tell her story under oath to members of the Judiciary Committee who will be voting on this nomination. Likewise, Judge Kavanaugh will be placed under oath and give his testimony. Both of them will be subject to the penalties for perjury, which is a routine requirement for everyone giving testimony. We have to remember this has to be a fair process, both to the accused and the accuser.

Some of the rhetoric, some of the statements I have heard about the process have been anything other than fair to either one of them, thanks to the fact that this letter was not disclosed earlier but then dropped into the public view, notwithstanding the reluctance of Dr. Ford to have her identity revealed.

So we are where we are. We have a job to do. Under the Constitution, it is the Senate's responsibility to provide advice and consent on nominations to the U.S. Supreme Court, and we are going to do that. We are going to do that after hearing from Dr. Ford and after hearing from Judge Kavanaugh, just as we have heard for days from Judge Kavanaugh and other nominees following an extensive FBI background investigation and investigation by the bipartisan professional staff on the Senate Judiciary Committee. We are going to know everything that can be known about the nominee and about this alleged incident that Judge Kavanaugh said never occurred 35-plus years ago.

I can't tell you where I was on any given day of the week 35 years ago at a certain time of day. That is why our job is so difficult, but we are going to do our very best, in fairness to Dr. Ford and Judge Kavanaugh, to try to bring this matter to a fair conclusion.

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