Nomination of Brett Kavanaugh

Floor Speech

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Ms. HIRONO. Madam President, these are the remarks I would have given at this morning's Judiciary Committee markup after the perfunctory and dismissive way the chairman treated the minority members of the Judiciary Committee. I walked out in protest. Here are the remarks I would have given at the committee markup.

I am in disbelief that we are here today voting on Brett Kavanaugh's nomination to the Supreme Court. Outrageous does not begin to describe the present circumstances. Yesterday we heard from Dr. Christine Blasey Ford, who spoke with genuine and raw emotional power about being sexually assaulted by Brett Kavanaugh. Even though it was more than 30 years ago, her memory of the assault was clear and vivid. This kind of recall is typical of sexual assault survivors. She was sincere and authentic. She was 100 percent credible, and I believe her.

By contrast, Brett Kavanaugh came to this committee and refused to give us straight answers. He would not call for an FBI investigation. He repeatedly stated that the other people who were at the gathering where Dr. Ford was attacked had ``rebutted her testimony.'' That is not true. His alleged accomplice in the attack, Mark Judge, claimed he didn't remember--a far cry from rebutting her statement. He claimed he didn't remember, refused to testify, and then went into hiding. Patrick Smyth and Leland Keyser said they simply don't remember--again, hardly a rebuttal.

Dr. Ford said yesterday:

I don't expect that P.J. and Leland would remember this evening. It was a very unremarkable party. It was not one of their more notorious parties, because nothing remarkable happened to them that evening.

In fact, even though she doesn't remember, Leland Keyser said she believes Dr. Ford's account.

In addition to making misleading statements--which is a pattern with Judge Kavanaugh--he accused Democratic Senators of coordinating a plot to sabotage his nomination. Clearly, he was speaking to an audience of one: President Trump. A nominee for the Supreme Court so rattled that he would buy into a vast conspiracy theory is astounding and dangerous. Let's not forget his exact words. Judge Kavanaugh said:

This whole two-week effort has been a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups.

With that nakedly political screed, Brett Kavanaugh showed us who he really is: a partisan political operative with an agenda--the very worry that kept him from confirmation to the DC Circuit for 3 years. His own words reinforced a concern that I and many of us here have that he cannot be a fair and impartial judge.

Setting aside the unvarnished political view--from a potential Supreme Court Justice, no less--the crux of the matter before us today is whether Dr. Ford was credible when she said that she is 100 percent sure that Brett Kavanaugh is the person who sexually assaulted her. On that issue, Brett Kavanaugh admitted, even without watching her testimony, that Dr. Ford did not play a part and was not part of any imagined partisan plot. So what we are left with is his own recognition that Dr. Ford has no political motive and no reason to lie. I challenge anyone who watched her testimony to claim that she did not tell us the truth.

Dr. Ford wasn't the only woman to come forward with an account of sexual misconduct against the nominee. Two other women have provided credible accounts that deserve real investigation. But whether it is one woman or three women, my Republican colleagues are letting nothing stop them from plowing through to get Brett Kavanaugh to the Supreme Court as soon as possible. Even before the committee had a chance to hear from Dr. Ford, Chairman Grassley had already scheduled today's vote.

By voting to support this nominee, Republican colleagues are sending a message loud and clear: Sexual assault survivors should not come forward because we are not going to listen to you. They will not be believed, and their lives will be up-ended in the process. That is exactly what happened to Dr. Ford.

As far as I am concerned, there was never a serious effort by the committee to get to the truth. Today's vote signals to the men and boys in America that you can demean and assault women--especially if you are in a position of power and influence. There will be no consequences. It won't even prevent you from becoming a Supreme Court Justice.

Yesterday, accusations flew from the other side of the aisle about deliberate efforts to make up accusations and undermine Judge Kavanaugh's nomination, but Democrats didn't need to manufacture additional reasons to oppose Judge Kavanaugh's nomination. As I have maintained before, his record demonstrates a pattern of misstating the facts. He wasn't candid yesterday. He wasn't candid in his testimony to the committee when he testified at his 2004 and 2006 confirmation hearings or when he testified at his confirmation hearing for this nomination in 2018.

I also found his candor lacking in the judicial opinions and legal arguments he authored. For example, as my colleagues have talked about in the past, Judge Kavanaugh was not honest with the committee in 2004 and 2006 when asked about matters that he worked on, and his emails from the White House show that he was not honest about his awareness of receiving stolen documents from Manny Miranda. In a case I am familiar with--Rice v. Cayetano--he demonstrated what could only be called a deliberate misstatement of the facts that he presented to the U.S. Supreme Court. He had to have known that what he wrote about the politics and culture of Native Hawaiians was not true. He filed an amicus brief in that case, and at his hearing a few weeks ago, Judge Kavanaugh misstated the holdings of Rice and refused to correct his misstatement when I gave him a chance to clarify.

I will say that I am one of the few people in the Senate who attended the oral argument in Rice. I know what the Supreme Court based its decision on, and he totally misstated the Supreme Court's decision.

Advocates for our Native communities are stepping up and taking notice. The Council for Native Hawaiian Advancement and the Alaska Federation of Natives issued statements that strongly urge the Senate to reject the nomination of Brett Kavanaugh. They and other groups representing indigenous peoples have come forward to explain how Judge Kavanaugh's views of the rights of indigenous peoples are deeply flawed. These are the kinds of attitudes that he expressed in his amicus brief in Rice v. Cayetano.

They are from the Department of Hawaiian Home Lands, the Office of Hawaiian Affairs, and the Alaska Federation of Natives.

Statement of Hawaiian Homes Commission Chairman Jobie Masagatani on the Nomination of Brett Kavanaugh to Serve as a Justice on the U.S. Supreme Court

Aloha Chairman Grassley and Ranking Member Feinstein: Having reviewed his writings and his statements in public proceedings, we find that Judge Kavanaugh neglected to recognize the history of actions by the United States government that has clearly established a trust responsibility not only on the part of the United States, but also the State of Hawaii for the lands that were set aside under Federal law in 1921 to provide for a permanent homeland for native Hawaiians (Hawaiian Homes Commission Act of 1920) and for the betterment of the conditions of native Hawaiians (Hawaii Admissions Act of 1959).

The Hawaiian Homes Commission Act set aside approximately 203,500 acres of land in what was then a Territory of the United States, the Territory of Hawaii, to assure that the indigenous, native people of Hawaii could be returned to their lands.

In the ensuing years, in the exercise of its constitutional authority, the U.S. Congress enacted more than 160 Federal laws designed to address the conditions of native Hawaiians. Additionally, upon its admission into the Union of States in 1959, the United States and the State of Hawaii agreed that the provisions of the Constitution of the State of Hawaii should reflect their respective responsibilities, including trust responsibilities, for the lands and resources designated to provide for the betterment of the conditions of native Hawaiians.

The lands and resources authorized under Federal law to be reserved for native Hawaiians in 1921 are today administered by the Hawaiian Homes Commission and the Department of Hawaiian Home Lands.

Our fiduciary duties and responsibilities to the beneficiaries of the Hawaiian Homes Commission Act are of paramount importance to existing and future generations of the indigenous, native people of Hawaii, to the State of Hawaii, and to the United States.

We cannot embrace nor endorse the views of those, like Judge Kavanaugh, who would deny our history, the Federal and State laws which have been enacted on the foundation of that history, including the right of the indigenous, native people of Hawaii to exercise self-determination under Federal law and policy. ____ State of Hawai`i, Office of Hawaiian Affairs, September 24, 2018. Re Nomination of Judge Brett Kavanaugh to the U.S. Supreme Court.

Dear Chairman Grassley and Ranking Member Feinstein: The Office of Hawaiian Affairs (OHA) greatly appreciates this opportunity to provide comments regarding the nomination of Judge Brett Kavanaugh to be an Associate Justice of the United States Supreme Court. In particular, given that Supreme Court precedent pertaining to OHA has become the subject of questions during Judge Kavanaugh's nomination hearing, our agency is compelled to clarify the record as it pertains to our organization, our work to better the conditions of Native Hawaiians, and the rights and status of our beneficiaries as Indigenous people.

As Judiciary Committee Member Mazie K. Hirono indicated during Judge Kavanaugh's nomination hearing, Native Hawaiians are the original, first people of the Hawaiian Archipelago, who exercised sovereignty for at least a thousand years prior to recorded contact with the Western world. Congress has acknowledged that ``. . . . prior to the arrival of the first Europeans in 1778, the Native Hawaiian people lived in a highly organized, self-sufficient, subsistent social system based on communal land tenure with a sophisticated language, culture, and religion.'' The Native Hawaiian people established and maintained the Kingdom of Hawai`i, first as a united monarchical government, and later as a constitutional monarchy, at all times under the leadership of a Native Hawaiian head of state.

Judge Kavanaugh's description of the Rice decision may have left some Committee Members and observers with another impression. Senator Hirono asked the nominee about an amicus brief he submitted in Rice, as well as an op-ed he wrote for The Wall Street Journal, in which he argued that OHA's very purpose was inconsistent with the principles and language of the U.S. Constitution. When asked to explain these views, Judge Kavanaugh stated that by a vote of 7-2, the majority of the U.S. Supreme Court had agreed with him, and that the Court found violations of both the Fourteenth and Fifteenth Amendments.

This is erroneous.

As stated earlier, the majority's decision was limited to the manner in which OHA's trustees were elected under the Fifteenth Amendment. To quote U.S. Supreme Court Justice John Roberts, then an attorney representing the State of Hawai`i in the Rice case, ``. . . the majority's opinion was very narrowly written and expressly did not call into question the Office of Hawaiian Affairs, the public trust for the benefit of Hawaiians and native Hawaiians, but only the particular voting mechanism by which the trustees are selected.'' In limiting its holding to OHA's means of electing trustees, the majority chose not to adopt arguments and conclusions made by then-practicing attorney Brett Kavanaugh, with respect to OHA's purpose and mission.

The extreme nature of Judge Kavanaugh's arguments, both his examples and his conclusions, may have played a role in the majority's failure to incorporate them in Rice. For example, he compared OHA's mission of serving Hawaii's Indigenous people to an interracial marriage ban to maintain white supremacy. He argued that allowing Native Hawaiians to elect their own trustees to manage their trust ``. . . could usher in an extraordinary racial patronage and spoils system'' of national consequence. Little explanation is given as to why treatment of the Indigenous people of Hawai`i in a manner similar to the treatment of other Indigenous people in the United States would have such dramatic consequences. At the time of his writing, Judge Kavanaugh may not have been familiar with Congress's clear legislative understanding that its relationship with Native Hawaiians is based on its recognition of Native Hawaiians as an Indigenous people and not based on race.

Through the process of the Committee's review of a portion of Judge Kavanaugh's writings during his time with the Bush Administration, we learned that he continued to hold and advance extreme views against Native Hawaiian rights after Rice. Disregarding the Court's decision not to adopt his arguments against the constitutionality of Native Hawaiian programs, Judge Kavanaugh offered the same arguments as legal advice when reviewing administration testimony on legislation. Given his reported acknowledgement of his lack of exposure to Indigenous people's law, it is concerning that he has held so tightly to arguments hostile to Native Hawaiians.

His past actions and the recent nomination hearing leave OHA with many doubts. We sincerely hope that if a case concerning Native Hawaiian rights comes before Judge Kavanaugh's court, be it the D.C. Circuit or the U.S. Supreme Court, he will look more closely at the facts before the court. Facts that include the actions that Congress, the Executive, and the State of Hawai`i have all taken, within the framework of the U.S. Constitution, in recognizing the unique status of Native Hawaiians. During his hearing, Judge Kavanaugh acknowledged Congress's ``substantial'' authority to deal with matters concerning Native people, though he offered few specifics beyond that statement. Judge Kavanaugh may find it interesting that in the years following Rice, Congress and the Executive have continued to pass legislation and establish programs to benefit Native Hawaiians, regularly with the acknowledgement of the legal and political relationship OHA has articulated throughout this letter.

In closing, OHA hopes that this letter has brought some clarity to questions raised as part of the process of considering Judge Kavanaugh's nomination. OHA hopes that the Committee understands the need we feel to clarify the record about Rice, and to address certain arguments espoused by Judge Kavanaugh prior to his taking the bench, which are not only inaccurate, but threaten the rights and resources of the beneficiaries that OHA exists to serve. Until and unless Judge Kavanaugh is able to correct the aforementioned misunderstandings and misconceptions, should a case involving the rights or political status of Native Hawaiians come before him, perhaps a recusal would be in order. Finally, OHA wishes to bring to the Committee's attention concerns voiced by American Indian and Alaska Native groups, who share our concerns with Judge Kavanaugh's record on Native law. Sincerely, Colette Y. Machado, OHA Board of Trustees Chair. ____ [From the Alaska Federation of Natives] AFN Opposes Kavanaugh Appointment

The Alaska Federation of Natives is the oldest and largest Native organization in Alaska. Our membership includes 186 federally recognized Indian tribes, 177 for-profit village corporations, 12 for-profit regional corporations, 12 not- for-profit regional organizations, and a number of tribal consortia that compact and contract to run federal and state programs. For over 50 years, AFN has been the principal forum and voice for Alaska Natives in addressing critical issues of law and policy, including the nomination of U S. Supreme Court justices.

The federal judicial appointment and confirmation process is designed to thoroughly vet nominees. As such, we did not immediately weigh in on President Trump's choice to replace retiring Justice Anthony Kennedy. However, the questions and colloquies that came out of Judge Brett Kavanaugh's Senate Judiciary hearings last week has necessitated us taking a position. AFN joins our colleagues and friends across Indian country in strongly opposing Judge Kavanaugh for the Supreme Court because of, among other things, his views on the rights of Native peoples.

Judge Kavanaugh's Position on the Indian Commerce Clause is Erroneous. Congress' plenary power over Indian affairs is grounded in the Commerce Clause of the U.S. Constitution. The clause gives the Congress the power to ``regulate commerce with foreign nations, and among the several states, and with the Indian tribes.'' Judge Kavanaugh concedes this point. However, like Justice Clarence Thomas--the most senior justice on the Supreme Court, he challenges the clause's application to affairs beyond trade. This impacts Alaska Native tribes, corporations, organizations and consortia because their dealings with Congress presently extends to a host of federal programs concerning their members, resources and governments.

In the 2013 Adoptive Couple v. Baby Girl decision, Justice Thomas contested Congress' authority to enact the Indian Child Welfare Act, reasoning the Indian Commerce Clause only provides federal authority over Indian trade. Because most federal laws concerning Indians lack a nexus to Justice Thomas's narrow definition of trade, they would unlikely survive the scrutiny he urges. The result would be a wholesale reshaping of the body of law and policy that has governed Indian affairs for the past century and a half.

Legal observers tracking Judge Kavanaugh believe he is further to the right than Chief Justice John Roberts. Thus, he may agree with Justice Thomas that Congress only has plenary power to regulate direct commerce with Indian tribes, nothing more. Confirming a nominee with this viewpoint would be disastrous for Alaska, and would roll back the gains of self-determination and usher back in the losses of termination.

Judge Kavanaugh's View of the Special Trust Responsibility is Misguided. The federal government has a special trust relationship with federally recognized Indian tribes. The relationship commands the highest moral and legal obligations, and is rooted in early federal-tribal treaties, the U.S. Constitution, federal statutes, and opinions of the U.S. Supreme Court. Judge Kavanaugh's writings demonstrate a limited view of the federal government's power to deal with Native peoples under this relationship. Specifically, he would only extend the special trust relationship to Indian tribes that have with his preferred history of federal dealings, including territorial removal and isolation. This, too, impacts Alaska since Alaska Native have a unique federal experience and few reservations were established.

During his Senate Judiciary Committee hearing, Judge Cavanaugh questioned the legitimacy of Native Hawaiian recognition, citing their different treatment by the federal government, and the fact that they do not live on reservations or enclaves. If he remains of the view that the special trust relationship only extends to Indian tribes with his brand of federal history, including territorial removal and isolation, he could very well rule that Congress lacks the authority to deal with Alaska Natives. This thinking could overturn much, if not all, of the Alaska Native Claims Settlement Act, as well as all other federal legislation and regulations addressing Alaska Natives, tribes, corporations and organizations. To confirm a nominee who does not understand or appreciate the position of Native Hawaiians, and who could weaken the special trust relationship Alaska Natives share with the federal government, would be imprudent.

Judge Kavanaugh's Assessment of the Political Classification Doctrine is Troubling. The political classification doctrine announced in the 1974 Morton v. Mancari decision, that focusses on and Indian person's membership in a federally recognized tribe rather than his or her ancestry to avoid strict scrutiny review of federal legislation and regulation that benefits Indians, would be extremely vulnerable if Judge Kavanaugh were to ascend to the Court. For the reasons outlined above, he would likely align himself with Justice Thomas on the issue, and the two of them would likely work to persuade their fellow justices that the relationship between an Indian person's status politically and their race is open for interpretation. Judge Kavanaugh does not accept this well- established legal doctrine. Confirming a nominee who is unable to grasp the necessity of federal programs based on the political classification doctrine, and articulate why they must be protected, would be unwise.

AFN strongly urges the U.S. Senate to vote against Judge Kavanaugh. The documents that have been released so far in relation to his nomination demonstrate how troubling his confirmation would be for Native peoples, particularly Alaska Natives and Native Hawaiians.

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Ms. HIRONO. It is deeply troubling to have a Supreme Court nominee for a lifetime position who isn't candid with us about the facts or straight with us about the law.

In Garza v. Hargan, he did it again. In that 2017 case, he wrote a dissent in which he misapplied the law and treated the case as if it were about parental consent. It was not. The case, which was about whether a 17-year-old undocumented young woman could be released from immigration custody to have an abortion, did not involve the question of parental consent. But he sat there at his nomination hearing, and when I asked him about it, he said that was a case involving parental consent--a total misstatement of the issue in the case. In that case, this young woman had already received a proper judicial bypass from a Texas judge that allowed her to make her own decisions. So that had nothing to do with having to require parental consent; she had already overcome that. But that wasn't good enough for Judge Kavanaugh. He inserted his own views about legal issues not even present in the case. This is just one example of his outcome-driven approach to important cases before him.

At the hearing, I also asked him about the pattern that was revealed in his numerous dissents. In several of those cases, his own colleagues called him out for misrepresenting the facts and the law. Just last year, in United States v. Anthem, the majority said that Judge Kavanaugh ``applies the law as he wishes it were, not as it currently is.'' In a 2008 case, Agri Processor v. NLRB, the majority wrote that Judge Kavanaugh's dissent ``creates its own rule.'' Instead of following Supreme Court rules, they said that Judge Kavanaugh's dissent abandons the text of the applicable law altogether. It is pretty telling when your own colleagues on the court feel so strongly about your dissent that they will actually call you out on it.

When this nomination first came to the Senate, I was skeptical. I said that if the President's nominee to the Supreme Court is anything like the nominees he has been sending to the lower Federal courts, I expect we will see a nominee handpicked by the Federalist Society and the Heritage Foundation intent on carrying out their rightwing ideology supported by the President. It turned out to be much worse than I imagined. Not only was the nominee someone who fit that description; it became clear that he was someone who lacked candor, credibility, and character. This has been displayed at every turn.

After hearing from Dr. Ford and Brett Kavanaugh yesterday, the editors of America Magazine--a well-respected Jesuit weekly--withdrew. They originally endorsed Judge Kavanaugh. This group withdrew their endorsement of Judge Kavanaugh. They said:

While we previously endorsed the nomination of Judge Kavanaugh on the basis of his legal credentials and his reputation as a committed textualist, it is now clear that the nomination should be withdrawn.

If Senate Republicans proceed with his nomination, they will be prioritizing policy aims over a woman's report of an assault.

27, 2018]

The Editors: It Is Time for the Kavanaugh Nomination To Be Withdrawn (By The Editors)

Dr. Christine Blasey Ford's testimony before the Senate Judiciary Committee today clearly demonstrated both the seriousness of her allegation of assault by Judge Brett M. Kavanaugh and the stakes of this question for the whole country. Judge Kavanaugh denied the accusation and emphasized in his testimony that the opposition of Democratic senators to his nomination and their consequent willingness to attack him was established long before Dr. Blasey's allegation was known.

Evaluating the credibility of these competing accounts is a question about which people of good will can and do disagree. The editors of this review have no special insight into who is telling the truth. If Dr. Blasey's allegation is true, the assault and Judge Kavanaugh's denial of it mean that he should not be seated on the U.S. Supreme Court. But even if the credibility of the allegation has not been established beyond a reasonable doubt and even if further investigation is warranted to determine its validity or clear Judge Kavanaugh's name, we recognize that this nomination is no longer in the best interests of the country. While we previously endorsed the nomination of Judge Kavanaugh on the basis of his legal credentials and his reputation as a committed textualist, it is now clear that the nomination should be withdrawn.

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Ms. HIRONO. In addition, Robert Carlson, president of the American Bar Association, the ABA, issued a letter urging the Judiciary Committee of the Senate to not vote on Judge Kavanaugh's nomination until there is an FBI investigation into Dr. Ford's account of sexual assault. The ABA explained that ``deciding to proceed without conducting an additional investigation would not only have a lasting impact on the Senate's reputation, but it will also negatively affect the great trust necessary for the American people to have in the Supreme Court.''

I agree. Brett Kavanaugh does not have the credibility, candor, character, or, I would say, as we saw yesterday, the temperament to be on the Supreme Court. His presence on the Court under this kind of cloud will weaken the Court. I cannot support this nomination.

I would like to end the remarks I would have given at the markup but am giving on the floor now. I would like to say that my colleague Senator Jeff Flake has said that he would not be able to vote on the confirmation of Judge Kavanaugh without an FBI investigation into the current allegations. I support that. I have no idea whether the Republican leadership is going to allow a timeout for that kind of investigation to occur--an investigation that I and other Democratic members of the Judiciary Committee have been calling for, for what seems like months.

Of course, I would want an FBI investigation to be thorough. I do not want some kind of a peripheral investigation to give cover to Senators who are wavering. I would want an investigation by the FBI to be thorough, to be real, to provide us with the kind of information that we need to make a determination as to the credibility, candor, and character of Judge Kavanaugh.

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