Executive Session

Floor Speech

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Mr. DURBIN. Madam President, I would like to respond to my colleague from Texas with regard to at least one or two aspects of what he said.

He has characterized the opposition to Judge Kavanaugh as ``mob rule.'' I don't think that is a fair characterization. The opposition to Judge Kavanaugh is on many different levels. My colleagues on both sides of the aisle have looked at this nomination seriously, and they have come to opposite positions. I don't believe we are influenced, frightened, or in any way moved by mob rule. I just don't get it.

Have I seen conduct that I think is untoward and really should not be condoned by people who feel strongly about this issue? Of course. Do I believe that people should have their freedom of speech limited or stifled? No, I don't. Even if it is something I don't want to hear, people have a right to speak. Of course, I will never condone violence or any physical activities against anyone, including Members of Congress. Some people have either come close to that line or have stepped over it, but I don't condone that in any way, shape or form.

If we are truly committed to the Constitution that we have sworn to uphold and defend, the First Amendment creates opportunities for American citizens that others around the world long for and never see once in their lives. Part of that is freedom of speech. Part of that is the right to petition your government. So if some have stepped over the line, I will not defend them when it comes to violent conduct, but in expressing their points of view with a sign or a march or even a chant, I have to say that it is part of our constitutional birthright, thank goodness, in the United States of America.

Last week, I saw Dr. Christine Blasey Ford for the first time. I had heard her name for a week or more. I had seen one photo of her in sunglasses, but I had never seen her or heard her speak. She came forward at great risk to herself and to her family after having been dislocated, with her kids, from two different homes. She came here to face the Senate Judiciary Committee and the Nation and to speak under oath. She had absolutely nothing to gain by coming forward. She did it, as she said, out of a sense of civic duty. She wanted to, in her own words, be helpful so that the Senate and leaders of this Nation would know what had happened to her before there would be any vote on the confirmation of Brett Kavanaugh to the Supreme Court. Her testimony was credible and powerful. She answered every question and tried to be helpful whenever she could.

I was struck by the statement from the Senator from Texas. He said that in some way, we want to make sure that our wives and daughters are treated fairly if they come forward with this kind of information. I couldn't agree with him more, but we all know what happened after her testimony. Even President Trump, before a Mississippi rally, ridiculed and belittled Dr. Ford. After once calling her a credible witness, she became the butt of his joke at a rally in Mississippi. That is unfortunate.

When Dr. Ford came before us, she had nothing to hide. The Republicans on the committee were so concerned about her testimony and their relationship in the questioning of her that they were unwilling to risk direct questioning as she sat in front of them. They pointedly enlisted a woman prosecutor to do their job. The prosecutor's examination was meandering and without any clear focus other than as an attempt to try to discredit Dr. Ford. That Republican prosecutor failed as Dr. Ford calmly replied to all of her questions.

It was clear, however, that despite this testimony, even despite this hearing, many Republicans had made up their minds, as the majority leader had characterized it, to plow right through regardless of Dr. Ford's testimony. We hear so many tributes to Dr. Ford from the Republican side out of one side of their mouth, and then they turn around and say that it is a smear. A smear is a lie.

I don't believe she was lying. They can't praise her on one hand and call her testimony a smear on the other. The majority leader did that for 3 successive days on the floor of the U.S. Senate.

They even went so far as to schedule a committee vote before that hearing with Dr. Ford and Judge Kavanaugh had started.

Then, last Friday, two of our colleagues, Republican Senator Jeff Flake and Democratic Senator Chris Coons, came together and joined Dr. Ford's call for a nonpartisan and thorough FBI investigation into the pending allegations against Judge Kavanaugh. That should have happened long before. Make no mistake. There would not have been a hearing with Dr. Ford were it not for Senator Flake, a Republican Senator, demanding it, and there would not have been an FBI investigation if he hadn't demanded it as well. I thank him for his leadership in doing that. Those were two reasonable requests, and I am glad that he was in a position to make it happen when Democrats could not. It was the right request.

Of course it would have been helpful for Senators exercising the advice and consent role if neutral investigators at the FBI were allowed to question all of the relevant witnesses, follow the facts wherever they may have led, and get to the bottom of the allegations brought by Dr. Ford, Deborah Ramirez, and Julie Swetnick. Unfortunately, the White House and Senate Republicans were determined not to let such an FBI investigation go forward.

A Whitehouse spokesman, Raj Shah, has now publicly acknowledged that Senate Republicans were allowed to severely constrain the scope of the FBI investigation. He said it. He said it publicly. He said it before the cameras.

Senate Republicans allowed only a handful of witnesses to be interviewed by the FBI. Deputy Press Secretary Raj Shah said: ``There was an initial list of four''--four--``provided to us by the Senate.'' There were reportedly almost 40 corroborating or character witnesses who have been trying to share information with the FBI. The FBI has refused to contact them, even though their names had been provided.

Dr. Ford's and Deborah Ramirez's attorneys both sent letters yesterday with lists of corroborating witnesses who were not interviewed by the FBI. There is no good explanation as to why these witnesses weren't interviewed by the FBI, nor can I explain why Dr. Ford and Judge Kavanaugh themselves weren't interviewed. Those are basic steps for a legitimate and credible investigation.

Some of my Republican colleagues have claimed that the FBI's supplemental investigation provides no corroboration of Dr. Ford's or Ms. Ramirez's complaints, but, of course, you will not find corroboration if the investigation systematically excludes corroborating witnesses.

Unfortunately, the effort by the White House and Senate Republicans to tie the FBI's hands in the Kavanaugh investigation is part of a pattern of concealment when it comes to the background of Brett Kavanaugh.

The Senator from Texas says: I hope this isn't a new standard for hearings on Supreme Court nominations. I hope it isn't either. There are some things we have done in this particular nomination hearing that were unheard of.

Millions of pages of Judge Kavanaugh's public service record have been blocked from release to the public and even to the Senate. There was a time when Senator Jeff Sessions--now Attorney General--demanded documentation on Democratic nominees, and at that time the Democratic chairman agreed with him. We provided all of the information requested, as we should have. In this case, with Republicans controlling the committee, we were limited.

We have been denied access to an entire 35-month period in Judge Kavanaugh's White House career when he worked as one of the President's closest advisers as the White House Staff Secretary. During that time, he worked on controversial issues, such as same-sex marriage, abortion, torture, and Executive power.

It is likely that there are documents in Kavanaugh's Staff Secretary record that would impact how Senators would vote on his nomination, and that is why they were hidden.

There was also an unprecedented partisan effort to screen and limit the documents that the committee itself could see. I listened as the Senator from Texas said: Dr. Ford had a partisan lawyer. Well, guess who screened the documents that were going to go from the official archives to our Judiciary Committee to review for the nomination of Brett Kavanaugh. The man's name is Bill Burck. He is Kavanaugh's former deputy. By every measure, Bill Burck is a partisan lawyer. I guess it is no surprise. What I was surprised was to find that an individual lawyer would have such power over a constitutional provision of advice and consent.

Overall, when all is said and done, after the denials from the White House of certain records, after the claims of Executive privilege, after Bill Burck went through and screened what he considered to be appropriate and inappropriate documents for the American people to see, less than 10 percent of Judge Kavanaugh's White House record has been disclosed.

Those documents are going to come out some day, and those who are quickly voting for him now without reading them run the risk that they are making a mistake, which they are going to have to explain at a later time.

Just yesterday we learned from a FOIA lawsuit that the National Archives has hundreds of documents concerning Brett Kavanaugh's work in the White House on warrantless surveillance programs. We will not see those documents before tomorrow's vote. The White House apparently fears their contents and prefers to plow through.

Why has so much of Judge Kavanaugh's record been concealed? Most likely because these documents contradict what he said. We have seen a pattern with Judge Kavanaugh from his Senate testimony in 2004, 2006, and again last month. When he is asked about controversial issues that he has been involved with in the past, he tries to deny or downplay them. He has done this repeatedly when testifying about matters he worked on at the White House, including the rules governing detention of combatants; warrantless surveillance; controversial judicial nominations, such as Pryor, Pickering, and Haynes; communicating with the press during the Starr investigation; and his work with Manny Miranda, a Republican Senate staffer who stole documents from Democratic Senators' computers, including my own, and shared them with Brett Kavanaugh when he was working at the White House.

On each issue, we have seen documents and reports showing that Judge Kavanaugh had far more involvement than his testimony let on. On issue after issue, Judge Kavanaugh's sworn testimony was either misleading or false.

This is a judge who claims that words matter. He says that he is a strict textualist who holds other people accountable for their words, but when it comes to his own words, he is happy to take liberties and refuses to take responsibility. We have been forewarned of what we can expect if he is given a lifetime appointment on the Court.

We saw this pattern again last week when he was asked about his high school yearbook and excessive drinking. They were legitimate questions that were relevant to the sexual assault allegations at hand. Many of Kavanaugh's answers to these questions simply weren't credible. His explanation of things he wrote in the yearbook didn't pass the laugh test. Multiple people who knew him and socialized with him quickly and publicly rebutted his denial that he ever drank, in their words, ``to the point that it would be impossible for him to state with any degree of certainty that he remembered everything that he did.''

I was particularly struck when Senator Amy Klobuchar of Minnesota explained that she understands alcohol abuse because her father was an alcoholic and then asked Judge Kavanaugh if he had ever blacked out. Instead of responding, Kavanaugh said: ``Have you?'' Conservative columnist Jennifer Rubin has written: ``It was a moment of singular cruelty and disrespect.''

It has been hard to take Judge Kavanaugh's testimony at his word on matters both large and small. That matters a lot when we are talking about a nominee's judgment, temperament, and integrity.

Judge Kavanaugh's judicial record and his academic writings raise even more concerns. Not only did he check the box on President Trump's litmus test of opposition to the Affordable Care Act and Roe v. Wade, his judicial opinions consistently find ways to favor big business and undermine protection for workers, consumers, women, and the environment.

He claims to be a textualist, but he has a habit of creatively defining words. In the Agriprocessors case, which I asked him about directly in the hearing, his dissent abandoned the text of the controlling statute. Instead, he borrowed a definition from another statute in order to argue against the right of slaughterhouse workers to vote to form a union. When I asked Judge Kavanaugh whether he ever worked in a job himself that was dirty and dangerous, as dangerous as a slaughterhouse, he told me he used to cut grass and worked one summer in construction.

Look at his dissents in the White Stallion and Mingo Logan cases, where the judge gave his own definitions to key terms in the Clean Air and Clean Water Acts--so much for stare decisis.

Judge Kavanaugh claims he follows precedent, but as we have seen in case after case, he goes his own way.

Look at his interpretation in the Supreme Court's 2008 Heller decision. Judge Kavanaugh believes the Supreme Court created a history and tradition test for considering challenges to gun safety laws. This test would have courts ignore the public safety impact of gun laws. Judge Kavanaugh admitted that he is ``a lonely voice in reading Heller that way.''

His approach would put at risk many commonsense laws, such as keeping guns out of the hands of domestic abusers. Judge Kavanaugh is not a lonely voice on gun safety; he is an extreme and frightening voice on gun safety.

After he wrote a dissent laying out his interpretation of the Heller precedent, a majority panel of DC Circuit judges--all of them Republican appointees--said this of his interpretation: ``Unlike our dissenting colleague, we read Heller straightforwardly.''

Judge Kavanaugh's reading of Heller may be music to the ears of the gun lobby, but it is manipulating precedent, nothing else.

Judge Kavanaugh's claim that he follows precedent is also contradicted by his view of the Supreme Court decision Morrison v. Olson. Rather than admit the majority's decision in the case still holds, Judge Kavanaugh clings to Justice Scalia's dissent, which lays out the so-called ``unitary executive theory'' of Presidential power.

Judge Kavanaugh has been explicit that he would overturn Morrison. Let's be clear. While Judge Kavanaugh may claim that he will scrupulously follow precedent, he has shown he is willing to overturn it when it suits him. I have cited just a few examples.

Also particularly troubling is this judge's view of Presidential power. Judge Kavanaugh wrote a striking passage in the Seven-Sky decision, dissenting from the majority's upholding of the Affordable Care Act. He wrote: ``Under the Constitution, the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.''

This is a truly breathtaking claim of Presidential power, a claim particularly problematic at this moment in history.

Then there is Judge Kavanaugh's evolving view on investigations of sitting Presidents. When he was working for Ken Starr and investigating President Clinton, he was pretty ferocious. But in 2008, he gave a speech and wrote a law review article arguing that sitting Presidents should be immunized from criminal investigations and civil suit. This was after Judge Kavanaugh spent a period of time working in the Bush White House.

He claims that he has an open mind on the constitutionality of criminal investigations of sitting Presidents, but consider what he wrote in that law review article in the Minnesota Law Review:

If the President does something dastardly, the impeachment process is available. No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to Congress.

These are not the words of a judge with an open mind.

It was a telling moment when Judge Kavanaugh at his hearing would not answer whether he believed a President should comply with a grand jury subpoena.

Here is the reality: We have to consider why this President chose this Supreme Court nominee at this moment in history when the Mueller investigation is closing in.

Just a few weeks ago, Judge Kavanaugh himself said: ``The Supreme Court must never be viewed as a partisan institution.'' But the testimony and demeanor of Judge Kavanaugh last Thursday belies any claim he makes of nonpartisanship.

I can understand emotion and indignation from Judge Kavanaugh when one considers the gravity of the charges against him and the pain he and his family must feel, but there was fire in his eyes when he read the words he assured us he had personally written.

Benjamin Wittes has been a colleague of Brett Kavanaugh. He has published his writings, and he even lent his name as a character reference for the judge. He called Judge Kavanaugh's performance before the Senate Judiciary Committee ``a howl of rage.'' Wittes went on to describe Kavanaugh's partisanship as ``raw, undisguised, naked and conspiratorial.''

Charlie Sykes, a conservative commentator, said of Kavanaugh's statement before the committee last Thursday: ``Even if you support Brett Kavanaugh . . . that was breathtaking as an abandonment of any pretense of having a judicial temperament.''

Judge Kavanaugh abandoned any veneer of neutrality last week before our committee.

Out of one side of his mouth, he claimed that he bore ``no ill will'' toward Dr. Ford. Then he called her allegations ``a calculated and orchestrated political hit,'' citing ``apparent pent-up anger about President Trump and the 2016 election and revenge on behalf of the Clintons.'' He even threatened Democrats when he said: ``What goes around comes around.''

In my 20 years on the Judiciary Committee, I have never heard anything like that--or even close to that--from a judicial nominee. It is hard to imagine how a nominee who has displayed such raw partisanship could then claim to serve as a neutral umpire on the Supreme Court. Judge Kavanaugh, through his testimony, has called his own impartiality into serious doubt.

Retired Supreme Court Justice John Paul Stevens, a man who is respected for his integrity and service to this Nation, said this week that the performance by Judge Kavanaugh shows he should not serve on the Supreme Court. I agree. At a time when our President plumbs the depths of bad behavior on a daily basis, we should not allow the highest Court in our land to now sink to that same standard in their ranks.

From a broader perspective, let's be clear what is at stake in this decision. We are at a moment in American history where our system of checks and balances is being profoundly tested. We have a President who has shown disrespect for the rule of law and the role of an independent judiciary. It is likely the Supreme Court will soon consider fundamental questions about Presidential authority and accountability. With so much at stake, we should not confirm a nominee to the Court unless we are sure of that nominee's credibility, integrity, independence, and judgment.

Serious questions have been raised about Brett Kavanaugh. Dr. Ford's testimony was serious and credible. When I asked her directly what degree of certainty do you have that Brett Kavanaugh was your attacker, Dr. Ford answered, without hesitation: ``100 percent.''

I believe her.

Judge Kavanaugh's testimony was simply not credible. From his contrived explanations of his embarrassing yearbook entries, to his ``I love beer'' declarations, he was a sharp contrast to Dr. Ford's measured accounting of a horrible day in her life she cannot forget.

I had hoped the FBI would be able to provide us with information to resolve unanswered questions, but they can't do their job if their hands are tied. When the Republicans in the committee and the White House decided to limit the number of witnesses, unfortunately, the investigation could not be completed to meet professional standards.

I will say this to my colleagues. We have to think about what it would mean if Judge Kavanaugh were to be confirmed to the Supreme Court with credible sexual assault allegations against him. Specifically, what it would mean to the millions of women across America who are survivors of sexual assault--women who have been scared to come forward with their stories for fear of being mocked, ridiculed, and shunned. What would it mean for them to see Brett Kavanaugh sitting on that bench in that Court across the street, day after day, for decades, casting what may be the deciding vote on cases that profoundly affect their rights. It would shake the confidence of millions of Americans in the integrity of our Supreme Court. We should not take that risk.

There are other qualified lawyers besides Brett Kavanaugh who could be nominated for this vacant seat--nominees whose legal views I may not agree with but who do not have serious questions about their fitness for office. If there are serious questions about a nominee's temperament, credibility, or judgment--as there clearly are for Judge Brett Kavanaugh--we owe a duty of caution. We should give the benefit of the doubt to protect the integrity of the Supreme Court.

With so much at stake, we should not confirm a nominee to the Court unless we are sure the nominee's qualifications are beyond question. I do not have that confidence in Brett Kavanaugh. I will vote no on his nomination.

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