Nomination of Brett Kavanaugh

Floor Speech

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Mr. CORNYN. Mr. President, as a member of the Senate Judiciary Committee, I am looking forward to a hearing that we will have tomorrow at 10 o'clock in the morning, at the request of Dr. Ford, that will give all of us an opportunity to provide a fair chance to her and for her to have her say. It is important that we do this because, during the last 10 days, it has felt like a series of small earthquakes. Actions taken and blunders committed by our Democratic colleagues have destabilized the normal confirmation process and timeline.

All of this stems from the fact that the allegations made by Dr. Ford were made to the ranking member and kept by her from other members of the committee as well as from the background investigators, who, normally, when allegations come up like this, protect the confidentiality and anonymity of both the accuser and the accused until they can be properly vetted. Yet that all went by the wayside when our friend from California, Senator Feinstein, sat on this letter, this accusation. So we are where we are.

As a result of the unfairness to both the accuser and the accused because of the secrets the Democrats kept, because of the way these were leaked to the press and the pledges of confidentiality were violated, we know the nominee, Judge Kavanaugh, who has had six FBI background checks in the course of his professional career, has been subjected to multiple accusations that could and should have been brought up much earlier.

As I say, if it had been handled during the normal, conventional process, it would have protected Dr. Ford, and it would have protected the nominee from this circuslike atmosphere, and we could have gotten to the bottom of the allegation. We could have, hopefully, ascertained where the truth lies. Yet, under this approach, under this current situation--again, created by this failure to release the information so it could not be investigated until after the hearing--everybody loses. I think we all recognize the basic unfairness of this process both to Dr. Ford and to Judge Kavanaugh and that it did not have to be this way.

The process, as I say, has been patently unfair. That is why my colleagues and I have been insisting on a better way forward by returning to the process that is fair to all concerned. In the dictionary definition, ``fairness'' is defined as the ``quality of treating people equally or in a way that is right or reasonable.'' Another definition is ``impartial and just treatment of behavior without favoritism or discrimination.''

How are we to handle this accusation and this challenging difference of position on Dr. Ford's part, who said this attempted sexual assault occurred 36 years ago, and Judge Kavanaugh, who has stated under oath that no such thing happened? How do we get to the bottom of this?

The biggest challenge we have is time because I defy any one of us to try to reconstruct what we were doing on a given day at a given time 35 or 36 years ago. It is just impossible to reconstruct with complete fidelity and accuracy.

What we really need to be thinking about, I believe, is a fair process. We have tried to provide a fair process for Dr. Ford, under these unfortunate circumstances, to tell her story, but we also need to provide a fair process for the nominee. This should not be a precedent for how future nominations will be handled. We should learn from this terrible experience and commit to doing better. One way to do better would be to return to our basic values and principles in our government and in our country, under our Constitution, which guarantee the rights of a person who is accused of a crime.

I know the minority leader--my friend from New York, Senator Schumer--has said to Judge Kavanaugh that this is not a court, that this is a nomination, which, I presume from that, means, well, anything goes and that there are no rules. He has been accused of a crime-- attempted sexual assault--and has testified under oath, under penalty of perjury, that no such thing happened. This is a very serious matter, and we need to take it seriously and not create a new framework out of thin air, which says, somehow, if somebody makes an accusation that cannot be corroborated by anybody else 36 years later, that that somehow satisfies our notions of due process and of protecting the rights of people who are accused of crimes.

Fundamentally, this is about fairness. People who have been accused of grave misconduct have a right to due process under our Constitution. They have a right to know who their accusers are as well as the nature of the charges being brought against them and the evidence that will be presented against them. Those are basic, constitutional, American rights that are consistent with our idea of what the government's burden should be when the government is trying to deny us our right to liberty or property or even to our lives.

We also know these rights include a right to speedy proceedings without unnecessary delays. Unfortunately, there have been plenty of delays for Judge Kavanaugh. Last week, we saw Chairman Grassley patiently wait and wait and wait some more while the legal team and political operatives who represent Dr. Ford strung the committee along. I am sure Judge Kavanaugh was wondering: What in the heck is going on here?

As we all heard during a televised interview on Monday night, he, unequivocally, denies the claims that have been made against him. Again, that is a serious statement because he does so under penalty of perjury. He said: ``I know what is the truth, and the truth is I have never sexually assaulted anyone in high school or otherwise.'' Those are strong words and direct words, and they remind us of something important. It is the truth that the Judiciary Committee and the entire country should be after--the truth. But for the truth to be our goal this week, some of my colleagues need to dial down the rhetoric and quit presuming guilt based on an accusation and nothing else.

At a minimum, a fair process requires a partial and open mind on the part of those charged with determining a person's professional fate. My fellow Senators need to remain open to receiving and evaluating credible evidence presented at the hearing. Unfortunately for our Democratic colleagues, that ship has sailed.

Long before Dr. Ford's allegations were leaked to the press and made public, contrary to her wishes, all of our colleagues on the other side of the aisle on the Senate Judiciary Committee had said that they would vote against this nomination, so Judge Kavanaugh hardly has an open and impartial tribunal deciding his professional fate and deciding whether this accusation will remain a stain on his professional career and reputation for the rest of his life.

Then, as I said, there is also the presumption of innocence. The Supreme Court has said: ``The law presumes that persons . . . are innocent until they are proven, by competent evidence, to be guilty.'' This is a fundamental bedrock of our constitutional system. It is nonnegotiable. It cannot be conveniently brushed away by our colleagues across the aisle. It is not one of several options; rather, it is guaranteed under our Constitution. The burden of proof is always on the party alleging wrongdoing, not the other way around.

We have the logical conundrum, as well, beyond the constitutional one, where Dr. Ford has testified--at least in the letter--to an event occurring. Judge Kavanaugh said it didn't happen. He said: I didn't do that; I wasn't there. So unless the burden is on the person making the accusation, how in the world could the person defending possibly prove a negative when he says that it didn't happen and he wasn't there? It is impossible. That would be a presumption of guilt, not a presumption of innocence. That would turn our Constitution on its head.

That is why it is so important for us to hear from Dr. Ford, to evaluate the strength of not just the allegations but what corroboration, what other evidence, there is in order to find the truth.

We have learned from media reports that attorneys for Dr. Ford have affidavits of additional people who know the accuser personally, but according to USA Today, these simply indicate that these are things that Dr. Ford told her friends 20 or 30 years later, not witnesses of the event that she claims occurred 35 or 36 years ago.

Let's also remember that three other eyewitnesses Ms. Ford identified have said that they have absolutely no recollection of the events that she says took place--none whatsoever. These are people Dr. Ford identified as witnesses to the assault that she claims Judge Kavanaugh perpetrated. Yet the witnesses she identified said that they have no knowledge of such an event.

We also need to remember the context in which all of this is occurring. Sixty-five women who went to high school with Judge Kavanaugh have written a letter saying that he has always behaved honorably toward them and treated them with respect. That doesn't mean Dr. Ford is not entitled to be heard--quite the contrary.

She has a story to tell. As the father of two daughters, I want to hear that story. I want to compare it to Judge Kavanaugh's unequivocal denial and judge for myself the reliability of each. As a former judge for 13 years and an attorney general for 4, I feel that doing anything less would be shirking my duty.

We owe Dr. Ford our time, our attention, and our best efforts at discerning the truth. That means her claims will be tested, examined, and new information, perhaps, will be brought to light. At least that is my hope. That is the way it should be.

We are trying to clean up the mess created by an unconventional process of leaking allegations to members of the press after the background test was completed and after the hearing occurred rather than handling it the way that, as I said, it should be. We should have started with that process, not end it here.

What the majority leader described yesterday as a disturbing pattern should never have taken place over the last few weeks. Our colleagues across the aisle, catching wind of an allegation, refused to share it with the majority and, instead, waited and then made sure that it was leaked to the press at the most politically opportune time, when it was likely to cause the maximum disruption and embarrassment to both Dr. Ford and Judge Kavanaugh. That is no way for the U.S. Senate to do its business.

A search for the truth--if that, in fact, is what we are involved with, and I hope it is--should not involve delays and the withholding of documents. It should not involve orchestrated personal attacks on Members either. It should not involve a mob rule like what we saw at the first Kavanaugh hearing. It should not involve people sending coat hangers to offices or forcing committee members to leave restaurants, harassing them when they are trying to have dinner with their family.

People who hold a genuine concern for Dr. Ford would have honored requests for anonymity and privacy. That is what Dr. Ford specifically requested. They would have passed those allegations to the Judiciary Committee so that an investigation could have been conducted in a more timely and confidential fashion, and then they could be addressed during the hearing, if necessary, that we had earlier this month. That standard procedure would have treated Ms. Ford as a real person, not as a political pawn, and it would have left the Democratic operatives who have now been hired to dig up dirt out of the mix.

I want to say that throughout all of this, Chairman Grassley has been exceedingly generous toward Dr. Ford, as we would all want him to be, even when his patience has been tested. I want to commend him, once again, because he has had a very difficult job of trying to run the Judiciary Committee, trying to be fair to the nominee and the accuser alike when this wrench, thrown into the spokes of the committee operation, has created more of a circuslike atmosphere than a deliberative process and search for the truth, testing the background of a nominee, which is something all nominees deserve. No nominee deserves to be dragged through the mud like this.

Chairman Grassley has been patient because he knows how important this is and how much is on the line, not only for the Supreme Court but also for women across this country who see a little bit of themselves in Dr. Ford and want to make sure that their voices, like hers, are always heard.

Over the last year, we have been in the middle of an important national conversation on the topic of sexual assault and the way men have treated women. As I said, I have two daughters. As I mentioned earlier, every American has a mother. Some are lucky and have a sister or a spouse or a daughter, and I think all of us would want to make sure that all of those women in our lives would be treated with dignity and respect, were they in the same position that Dr. Ford now finds herself in.

Yet it is also important to remember that every person has a father. Many are fortunate to have brothers or sons or husbands, and we would want to make sure that all of those men are also treated fairly and with respect. We would no more rather have a women's truthful claim be ignored than an uncorroborated accusation against a man be honored. That is fairness.

As we know, Dr. Ford is a real person, and so is Judge Kavanaugh-- flesh and blood. Each of them should be treated with fairness, with dignity, and with respect. It is not just one or the other, which is the false choice that many of our colleagues have suggested. We can't pick one and dismiss the other outright and claim any fairness or allegiance to our constitutional system and due process of law if we do otherwise.

As Michael Gerson, the columnist for the Washington Post, reminded us earlier this week, somewhere along the way this process devolved into one that is no longer about just winning arguments but about demonizing and destroying other people. It is not about winning arguments. It is not about winning elections. It is not about winning votes here in the Senate. This process has devolved into character assassination and destroying the reputation and lives of real people. It is not too late to change that.

This all calls to mind that famous line by Joseph Welch, a lawyer during the McCarthy hearings. He said: ``Have [we] no sense of decency . . . at long last?''

Well, I think we still do, and I hope Republicans and Democrats will prove we have a sense of decency and fairness as we approach Thursday's hearing.

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