Executive Session
Floor Speech
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Ms. HIRONO. Mr. President, tomorrow we will cast a very important vote on whether to end debate on the nomination of Brett Kavanaugh to be an Associate Justice of the Supreme Court of the United States.
Should he be confirmed to this position of awesome responsibility, Judge Kavanaugh would be just one of nine people with the power to change the American Government and the American way of life for at least a generation. He would be hearing and deciding cases that touch all facets of our lives, including the healthcare we receive when the Texas case involving the Affordable Care Act's individual mandate makes its way to the Supreme Court. This particular case is very important because if Texas wins, that means the ACA's protections for those with preexisting conditions--one out of four people in this country--would be done away with.
The Supreme Court will also probably get a lot of immigration cases and many cases about DACA, sanctuary sites, temporary protective status, and family separation that are pending in the lower courts, and also abortion, as courts weigh the burden imposed on a woman's right to choose by laws limiting abortion in States like Texas, Iowa, and Louisiana. It doesn't really matter? Of course it matters whether Roe v. Wade is overturned, but even if Roe v. Wade is not overturned, with Judge Kavanaugh's record, all of these limiting laws by States that I just talked about will probably be supported by him, and at some point, the right to an abortion that we have under Roe v. Wade will be pretty much a nullity.
The Supreme Court will also be faced with cases that will address the right of workers to bargain collectively with their employers, as litigation comes up to the High Court in the wake of the Janus decision, and many other important topics, including voting rights, gerrymandering, the census, race-conscious college admissions, and environmental laws.
The Supreme Court's decisions touch every aspect of American life. With so much at stake, the Senate has an obligation to closely scrutinize every nominee to the Supreme Court. We need to know that they have the qualifications for the job. Do they have the proper education? Do they have the necessary breadth of experience? Will they treat everyone in the Court--including Court employees, law clerks, and lawyers--with an even temperament? Can they keep their cool under pressure and make reasoned decisions when the stakes are high? Can they listen to the facts and apply the law without fear or favor, or will they let the experiences they bring with them override objective judgment? Will they insert their personal preferences where they don't belong? We need to know if they can rule fairly. Will they give every litigant who comes before the Court a fair hearing? Will they acknowledge and put aside their biases, inherent and otherwise? These last two considerations are especially important because the Trump administration outsourced the vetting of Supreme Court nominees to the Federalist Society and the Heritage Foundation. These ultra-rightwing groups have spent decades supporting people like Brett Kavanaugh and their ideological, outcome-driven jurisprudence.
After months of scrutinizing Judge Kavanaugh's record and evaluating his performance before the Judiciary Committee in two hearings, it is clear that the answer to most of these questions is no. His judicial record is deeply ideological and outcome-driven, he remains a fierce political partisan operative, and he holds troubling legal views on Native Hawaiians, Native Americans, and Alaska Natives.
These patterns were clear based on the weeks I spent reviewing Judge Kavanaugh's writings, his judicial decisions, and the small fraction of his records made available from his time as a key White House aide to President George W. Bush. I became even more certain of my decision to oppose his nomination after his first hearing in the Judiciary Committee and after reading the mostly dismissive non-answers he gave to our followup written questions.
There are plenty of substantive reasons to oppose Brett Kavanaugh's nomination, and I will continue speaking out about many of these reasons in the coming days, but over the past 2\1/2\ weeks, we have learned new information that underscored my concern that Brett Kavanaugh lacks the character, candor, credibility, and temperament to serve on the Supreme Court.
Last week, the Senate Judiciary Committee heard testimony from Dr. Christine Blasey Ford and Brett Kavanaugh about Dr. Ford's account of an attack on her by the nominee and a friend when they were all teenagers. Dr. Ford conducted herself with grace and courage, recounting the terrifying experience that has had a lasting effect on her life.
In his testimony, Judge Kavanaugh dropped the polite veneer he presented at his first hearing, during which he complimented all the Senators he had met with and told the committee that ``[t]he Supreme Court must never be viewed as a partisan institution.'' That was then, but last Thursday, he launched into a partisan political screed that contradicted everything he has ever professed to believe about the way judges should behave. He 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.''
I have to say, sitting there listening to him be so totally partisan was bizarre. What he said was bizarre. He was angry, he was belligerent, he was partisan, he went on the attack, and he argued with Senators. He forgot who was there to ask the questions and who was there to answer them. These are not qualities to look for in a Supreme Court Justice.
More than 1,700 law professors across the country agree, including Dean Avi Soifer and 6 other professors from the University of Hawaii and 21 professors from Georgetown University Law Center, both my alma maters. I want to quote what a law professor said:
We have differing views about the other qualifications of Judge Kavanaugh. But we are united, as professors of law and scholars of judicial institutions, in believing that Judge Kavanaugh did not display the impartiality and judicial temperament requisite to sit on the highest court of our land.
4. It will be updated as more signatures are received.
Judicial temperament is one of the most important qualities of a judge. As the Congressional Research Service explains, a judge requires ``a personality that is even-handed, unbiased, impartial, courteous yet firm, and dedicated to a process, not a result.'' The concern for judicial temperament dates back to our founding; in Federalist 78, titled ``Judges as Guardians of the Constitution,'' Alexander Hamilton expressed the need for ``the integrity and moderation of the judiciary.''
We are law professors who teach, research and write about the judicial institutions of this country. Many of us appear in state and federal court, and our work means that we will continue to do so, including before the United States Supreme Court. We regret that we feel compelled to write to you, our Senators, to provide our views that at the Senate hearings on Sept. 27, Judge Brett Kavanaugh displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land.
The question at issue was of course painful for anyone. But Judge Kavanaugh exhibited a lack of commitment to judicious inquiry. Instead of being open to the necessary search for accuracy, Judge Kavanaugh was repeatedly aggressive with questioners. Even in his prepared remarks, Judge Kavanaugh described the hearing as partisan, referring to it as ``a calculated and orchestrated political hit,'' rather than acknowledging the need for the Senate, faced with new information, to try to understand what had transpired. Instead of trying to sort out with reason and care the allegations that were raised, Judge Kavanaugh responded in an intemperate, inflammatory and partial manner, as he interrupted and, at times, was discourteous to senators.
As you know, under two statutes governing bias and recusal, judges must step aside if they are at risk of being perceived as or of being unfair. As Congress has previously put it, a judge or justice ``shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.'' These statutes are part of a myriad of legal commitments to the impartiality of the judiciary, which is the cornerstone of the courts.
We have differing views about the other qualifications of Judge Kavanaugh. But we are united, as professors of law and scholars of judicial institutions, in believing that he did not display the impartiality and judicial temperament requisite to sit on the highest court of our land.
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Ms. HIRONO. Judge Kavanaugh also tried to convince us that while he ``liked beer,'' he was basically a choir boy--interested in nothing more than sports, school, and service projects. This carefully painted image has been directly contradicted by Judge Kavanaugh's own words in his yearbook and by many of his high school and college classmates over the past weeks.
These inconsistencies and contradictions were part of the reason I joined many of my colleagues in calling for a full FBI investigation of allegations against Judge Kavanaugh. I wanted the FBI to examine inconsistencies and contradictions between his testimony and that of others who knew him in high school, college, and beyond.
Last Friday, Senators Flake and Coons brokered an agreement to hold off on a floor vote for at least a week while a supplemental background investigation could be completed to look into these allegations. But I was disappointed that as the days went by, it became more and more clear that the White House rigged the investigation. The President claimed to want the FBI to do a comprehensive investigation, but that did not happen.
Our ranking member, Senator Feinstein, wrote to White House Counsel Don McGahn and FBI Director Christopher Wray the day after the investigation began to request a copy of the written directive sent by the White House to the FBI. She got no response. The following day, many other members of the committee also wrote to Mr. McGahn and Director Wray about the supplemental investigation.
In addition to repeating the ranking member's request for an explanation of the scope of the investigation, we also asked that it be comprehensive. We wanted all serious allegations against the nominee to be investigated. Of course, we would expect, in a comprehensive investigation, that all appropriate witnesses would be questioned. We asked that the FBI ``perform all logical steps related to these allegations, including interviewing other individuals who might have relevant information and gathering evidence related to the truthfulness of statements made in relation to these allegations.'' We got no response.
Just yesterday, I joined a letter with many of my committee colleagues asking Chairman Grassley to prevent public mischaracterization or selective leaks of the results of the FBI's previous work. We urged him to ``call for a full Senate briefing by the FBI . . . so that all Senators hear the same information and have the same opportunity to question the FBI before any floor vote on the Kavanaugh nomination.'' These are requests having to do with the most recent FBI investigation. We asked for a meeting between the chairman and the minority members ``to establish bipartisan ground rules for public discussion of the information provided by the FBI'' and this most recent, totally truncated and inadequate investigation--those last were my words--but both requests were rejected.
I had hoped the FBI would exhaust all possible avenues of investigation relevant to whether Judge Kavanaugh had a pattern of drinking that resulted in aggression and belligerence toward women. I had hoped they would follow leads given to them by Dr. Ford and Ms. Ramirez. I had hoped they would be permitted by the White House to do the job we know they can do--the job former Director James Comey said they could do. Instead, as we now know, they were only allowed to do the bare minimum.
As we know from news reports, there are dozens of people with relevant information, some of whom say they have corroborating evidence, who need to be interviewed, but they were not.
It is simply impossible, after seeing the results of the FBI's supplemental work--and I hesitate to call it an investigation--that anybody could think it was in any way, shape, or form the comprehensive investigation the President promised. This so-called investigation is a sham. It is a fig leaf for the Republicans to hide behind. It is a talking point for their continued and predictable criticism of Democrats. They will say: See? You wanted an FBI investigation, and you got one. But now it isn't good enough for you.
Who are they kidding? This is a sham investigation. This so-called investigation wasn't good enough for me, and it shouldn't be good enough to satisfy the American people. Judge Kavanaugh has a burden-- not a burden of proof like in a court but the burden to show us he has not just the credentials for the job but the temperament and the character necessary for this lifetime appointment.
I have said many times that Democrats didn't need to manufacture reasons to oppose Judge Kavanaugh's elevation to the Supreme Court. Based on his record, his opinions and his dissents, his academic writings and speeches, I had concluded before these new reports came forward that he would not be fair and objective on the Supreme Court. His views on reproductive rights, Native rights, legal protections for workers, consumers, and the environment are all of deep concern to me, not to mention his expansive views on Executive power, including protecting a sitting President from criminal or civil proceedings.
Now that we have heard Dr. Ford's account and seen Judge Kavanaugh's angry and combative reaction, it is evident that he should not serve on and should not be confirmed to the Supreme Court for a lifetime, decades of making decisions that will impact our lives on all of these areas on which he has a very troubling record. We can do better, and the American people deserve better.
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