Executive Calendar--Motion to Proceed

Floor Speech

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Nomination of Brett Kavanaugh

Mr. President, today I filed a lawsuit related to a violation of the separation of powers.

Our Constitution lays out a very clear framework in which the President of the United States nominates and the Senate proceeds to review the record of an individual in order to determine if that individual is of fit character to serve. This strategy came as our Founders struggled with how to enable staff to fill key positions in the executive branch and key positions in the judiciary, and it is something that Hamilton wrote about extensively in his Federalist Papers.

No. 76 was written in 1788 as a letter to the people of the State of New York. In it, he addressed this separation of powers at length. He said that the Founders had considered giving the assembly--that is a large group--the ability to choose those who would fill posts in the executive branch as a check and balance to the President but that they had considered the fact that Senators would probably horse trade, that one Senator from one State would want their friend in one position and another Senator from another State would want a different person, and that that horse trading would not produce the best set of individuals to populate the executive branch or to serve as judges. So they came to rest on the idea of having one individual--the President--nominate individuals to serve.

Here is a short piece of his longer discussion. He said: ``The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them.''

He goes on to applaud the many merits of having one individual bear the burden of making these nominations.

But then, of course, it is a nomination; it is not an appointment. And to be appointed, the Senate must confirm.

He addresses this question of the role of the Senate. Alexander Hamilton, writing to explain the action and the design of the Constitution in his letter to the people of New York in 1788, says:

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters. . . .

He goes on to say that a President might be influenced by favoritism to people in his own State or favoritism to people in his family or family connections or favoritism because he had a friendship or a pursuit of popularity triumphing over professional skills. So for all of these reasons, the Senate process exists to review the record of the individual and to determine, as Hamilton put it: Is that individual a fit character or an unfit character?

Now, we all in the Senate took an oath of office to uphold the Constitution, and, certainly, that means defending and exercising our responsibility under the advice and consent clause of the Constitution. We cannot interfere in the ability of the President to nominate. That is the President's responsibility. We can give our suggestions, but in the end, whatever the President says in regard to an office, whatever person the President identifies, that is the nominee, and we cannot interfere with that. But so, too, then, the President cannot interfere in the exercise of the Senate in reviewing the record of the individual. Certainly, the President can share his or her insights on the individual and his or her encouragement to speed up the process but cannot interfere in the underlying exercise of reviewing the record.

But here we are in this extraordinary moment where the President of the United States has crossed the boundary between the separation of powers and has proceeded to interfere with the deliberations of the Senate, and he has done so not once and not twice but at least on three significant occasions. I will proceed to share those occasions.

The first was the President's team intervening to stop the Senate from accessing Nominee Kavanaugh's records when he served as Staff Secretary to President George W. Bush.

Senator Leahy, the longest serving Member of the Senate and a longtime member of the Judiciary Committee notes in a letter that the committee has a ``longstanding, bipartisan expectation . . . that any materials produced while a nominee was a public servant that could shed light on his or her views, thinking, or temperament, that are not privileged, should be subject to public scrutiny and carefully considered by the Senate prior to confirmation.''

Now, this was a view that was a bipartisan view. It is a view that was expressed by a senior member of the Judiciary Committee--a Republican Member. That individual, Senator Cornyn, proceeded to note that the documents that Judge Kavanaugh had ``generated . . . authored . . . or contributed to'' during his tenure as White House Staff Secretary should be conveyed to the Committee. This ``just seems like common sense,'' he added.

In other words, it just seems fundamental to our responsibility here in the Senate to review the record of Judge Kavanaugh, but just days after the senior Republican member of the Judiciary Committee expressed those sentiments, Republican Senators were summoned to the White House by the White House Counsel, Donald McGahn, and immediately following that summoning and those instructions--those directions from the White House--suddenly, Senators were being denied the opportunity to see those documents. In fact, it went so far as the chair of the Committee proceeding not to ask for the documents after this direction from the White House. So, certainly, that intervention did directly compromise our ability as Senators to review the record of the nominee and, therefore, violated the separation of powers and violated each of our abilities to fulfill our constitutional responsibilities.

The second occasion is that Defendant William Burck, who has a series of close connections to the White House, proceeded to exercise the power of executive privilege on behalf of the President to deny the Senate access to 100,000 pages of White House Counsel documents. What did this individual say when he was exercising this power of censoring the documents that would be obtained by the Senate? He said: ``The White House . . . has directed that we not provide these documents. . . .''

That is a direct interference in the advice and consent deliberations of the Senate, and all of us together--Democrats and Republicans, northern Senators and southern Senators, eastern coast, western coast, heartland--should defend our responsibility under the Constitution to provide advice and consent, which means the ability to review the record of the nominee.

Then there is a third occasion where Defendant Burck proceeded to label documents being presented to the Senate as ``committee confidential.'' In fact, the Committee consulted with him during the process to see what the extent of this was and why they were done.

There is no index that provides information to the Senate on why so many documents were blocked by Burck from ever getting to us. That log or that index doesn't exist saying: Yes, we looked at this, document and here is why executive power prevails. There is no record or log for why more than 141,000 pages of documents were labeled ``committee confidential,'' preventing Senators from proceeding to talk about the contents, to have the contents examined by experts, to have the contents examined by the public, to take feedback from the citizens of the United States, to have staff be able to look at these documents and to be able to review them, and to be able to get feedback on them to fulfill our responsibility as Senators to examine the record of the nominee.

Thus we are in uncharted territory. Never before have we seen this direct, substantial, and extensive intervention by the President in violation of the separation of powers under the advice and consent clause of the Constitution. Thus, it is important that we ask for judicial intervention.

There is no more important document to us than the Constitution--our ``we the people'' Constitution--of the United States of America. We will be failing if we do not aggressively pursue our responsibility to review the record of a nominee. So let us do that. Let us ask the courts for intervention to ensure that we have access to this record.

We have had over the past few days new information regarding the nominee--new information from women who have shared their difficult, difficult experiences. What would be the appropriate conduct here in the Senate? It would be for the FBI to investigate--not a criminal investigation but a background investigation. That was accorded to Anita Hill in 1991, a reopening of the background investigation to get the facts.

How is it that a Senate and a President that could support the proper role of the FBI in 1991 will not stand up today for fairness for women who are coming forward?

Why is it that the nominee, steeped in the law, who has said he wants a fair hearing--he wants a fair hearing--does not demand an FBI investigation so it is fair to him and fair to these three women--Dr. Ford, Deborah Ramirez, and Ms. Swetnick--who are coming forward? They are being treated very poorly by this institution. They are being treated as if they are a problem, when they are, in fact, courageous Americans helping us to do our advice and consent responsibility to understand the record of the individual and whether the individual is fit or unfit.

To those who say that, well, these might not be true, wouldn't you be the first, then, to stand up and say that the FBI should reopen the FBI investigation and that nothing should go forward until the President authorizes that? If you want fairness, you want facts.

Here we are. Not only are we failing the test of 1991 in terms of the FBI investigation, but we are failing the test in terms of the witnesses. In 1991, numerous corroborating witnesses came forward to share and expand the dimensions of the events under consideration with Anita Hill. Now the Judiciary Committee is saying that we are only going to allow a ``he says, she says'' dynamic. This is absolutely unfair to the women who have come forward.

Now the Judiciary Committee is saying they are going to bring an individual to prosecute, as if this is a trial of the woman that is coming forward. How wrong is that to try to turn this into a trial? If you want a trial, well, then, shouldn't you have the FBI investigate and get the facts? It shouldn't be a trial. We should be listening carefully, and we should be allowing fairness to both, those with corroborating information and, certainly, for the nominee, as well as those who are sharing their experiences from the past about the nominee. Give transparency and opportunity to both but not this farce of a hearing planned by the Republicans on the Judiciary Committee.

We should be able to do so much better. We have had decades of experience since 1991, since we went through a parallel situation of allegations regarding personal conduct. How is it that now, 27 years later, we are doing so much worse in respecting women coming forward to share their stories. Why are we doing a worse job of respecting dignity, a worse process in terms of listening to facts, a worse process in terms of trying to turn it into a trial of a courageous woman who came forward to share her experiences?

Well, I have never felt so burdened by the misconduct of this Chamber as I feel right now. Let's stand up for decency and dignity and honor those who have come forward, respect them, listen to them, and explore the stories and the experiences they share so that their voices can be fairly heard before this body.

Let us not let the President of the United States trample all over the Constitution by violating the separation of powers and blocking our Chamber from receiving the documents necessary to review the record of the nominee.

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