Executive Session

Floor Speech

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Mr. KING. Mr. President, first I want to congratulate and thank the Senator from Rhode Island for his moving and eloquent remarks--so moving and eloquent, in fact, that I contemplated foregoing my own.

The Senator expressed the feelings of many of us, particularly in his closing, which was very powerful, and, I think, very well encapsulated the one possible positive result from this sorry process.

I stated my opposition to Brett Kavanaugh's appointment to the U.S. Supreme Court before Dr. Ford's allegations became public--before I had ever heard about them, before anyone had ever heard about them, as far as I know, except some members of the Judiciary Committee.

Therefore, I don't believe you have to believe Dr. Ford to conclude that Judge Kavanaugh should not be elevated to the Supreme Court-- first, because of his judicial philosophy.

If you will pardon me, I want to digress for a moment into constitutional history--preconstitutional history, if you will. There is a basic paradox of government. We give power to something called the government in order to protect our security, to protect us as individuals, to protect our liberty. The paradox is that we then have to worry about the government to which we have given the power abusing us.

James Madison captured this in the 51st Federalist:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men--

And, of course, today Madison would say men and women over men and women--

the great difficulty lies in this: you must first enable the government to control the governed, and in the next place oblige it to control itself.

The Romans put it this way: ``Quis custodiet ipsos custodes.'' Who will guard the guardians?

The other philosopher who talked about this was the English philosopher Lord Acton: ``All power corrupts and absolute power corrupts absolutely.''

The American Constitution, in my view, is the most sublime answer to this ancient question of any instrument of government ever formed by people on this Earth. It is based upon a profound understanding of human nature: If you give people power, there is the potential for it to be abused--not the potential, the likelihood that it will be abused.

So the Constitution is an elaborate scheme for preventing that abuse. The first line of defense is the structure of the government itself. What Madison was talking about was obliging the government to control itself--this herky-jerky, complicated, Rube Goldberg device involving two Houses, checks and balances, the President, the veto, submitting treaties, two-thirds votes, advise and consent, and then the whole level of the State government and local government, the division of responsibilities between the governments, and enumerated powers. The Framers wanted it to be difficult for majorities to ride roughshod over minorities. They wanted it to be difficult to legislate, and they succeeded beyond their wildest dreams.

It is a very difficult piece of machinery to bring into action, but even after the Framers had designed this elaborate structure specifically in the name of protecting the rights of the people, they weren't satisfied. They wanted to take another step, because going back to our other fundamental document, the Declaration of Independence talks about certain inalienable rights--life, liberty, and the pursuit of happiness--and that word ``inalienable'' isn't defined much. Not much attention is paid to it. ``Inalienable'' means neither can you give it away nor can it be taken from you. To alienate is to give away or have it taken from you. That is what ``inalienable rights'' mean.

Going back to when they said we have this elaborate structure that will be very complicated to operate, what if the majority makes this structure work in such a way that is amicable to the fundamental rights of people? The first thing Congress did was to adopt the Bill of Rights. The Bill of Rights is the second shield for us as individuals. I always thought of it as a force field around individuals that protects the basic rights, even if the government follows all of the procedures.

Congress shall make no law abridging the freedom of speech, establishing religion, or controlling the free exercise thereof. Search and seizure must be reasonable. You don't have to give testimony against yourself. All of these rights in the Bill of Rights are designed to protect us as individuals from the government.

The framers then had an interesting problem when they got to the Bill of Rights, and they listed the rights. Somebody--and I can't remember who it was right now--came up with the problem that if you list the rights, then people will later say: Well those rights are listed. Therefore, there aren't any other rights that can be protected. So they added the Ninth Amendment, which is one of the most unappreciated and undiscussed amendments to the Constitution. The Ninth Amendment says: ``The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.'' In other words, there are rights that exist--they recognize that--that aren't the ones listed that we all think of in the First through the Fifth Amendment--rights such as freedom of speech, the press, freedom from unreasonable searches, the right to bear arms. They were afraid they would appear too exclusive. So they passed as part of the Bill the Rights the Ninth Amendment.

What does this have to do with Judge Kavanaugh? To understand Judge Kavanaugh's jurisprudence, what kind of judge he will be--by the way, that is what we are all doing here. This is an exercise in forecasting the future. What will this person decide? What kind of judge will they be? That involves things like demeanor and temperament, but it also involves judicial philosophy.

To understand the judicial philosophy of Judge Kavanaugh, you have to understand the judicial philosophy of Justice William Rehnquist. Judge Kavanaugh has characterized Justice Rehnquist as his judicial hero. He gave a speech about him in 2017. He says that the article in the Texas Law Review in 1976 written by Justice Rehnquist is one of the most important legal documents ever written.

What do Justice Rehnquist and Justice Kavanaugh have in common? They have a very expansive view of what States can do to limit your rights and a narrow view of what the Federal Government can do to protect your health, welfare, the environment--you name it.

Justice Rehnquist voted against Roe v. Wade. Justice Rehnquist criticized Griswold v. Connecticut. He voted against Roe v. Wade because he said the right of a woman to control her own reproductive health is not enumerated in the Constitution. Obviously, it is not listed in the first two or three Amendments, but the Court found that it was a basic human right of women, and that is the basis of Roe v. Wade.

The problem with Justice Rehnquist's approach and Judge Kavanaugh's approach to unenumerated rights is that they say unenumerated rights could be recognized by the courts only if the asserted right was rooted in the Nation's history and tradition. That is called originalism, or it is a piece of originalism. In other words, you can't assert a right unless you can show that the Framers thought about it when they passed the amendments, or that it was somehow rooted in the tradition. If abortion was legal across the country in 1897 or 1867 or 1787, then you couldn't do it. The Court would be making law.

The problem is that this approach freezes rights in history, and it allows no room for the evolution of ethics and morality. A good example is Loving v. Virginia, which is the case that overturned misogynation laws that made it illegal in many States in the country, including Virginia, at the time--and this was in the 1960s--for people of different races to marry one another.

It is hard to argue using the Kavanaugh philosophy that that is a legitimate exercise of judicial authority because certainly, at the time of the passage of the Bill of Rights and the passage of the 14th Amendment, anti-misogynation laws were all over the place. So Rehnquist and Kavanaugh would say you can't do that. This isn't judicial lawmaking. This is judicial protection of individuals' rights from State incursion.

In Griswold v. Connecticut, in many ways, Griswold was the case that said the State of Connecticut could not constitutionally prohibit the sale of contraception to married couples. It has been widely criticized in many ways. The Griswold case, I believe, was the founding document of the Federalist Society. It was in reaction to Griswold and the following cases that the Federalist Society arose in the 1980s.

So this philosophy is that the States have wide latitude to restrict these rights--enumerated or not. That is why I believe there is--I don't know--a 50-50 chance, 60-40, or 70-30 that a Justice Kavanaugh would repeal Roe v. Wade. I give it 99 percent that he will gut Roe v. Wade. There are something like 15 cases headed for the Supreme Court right now from various States around the country where the right of a woman to control her reproductive future is under assault. The decisions may not be an outright repeal, but by piecemeal, chipping away at that right, making it harder and harder to exercise Roe v. Wade, it will be a hollow shell.

Judge Kavanaugh said in his hearing: I am not going to make these value judgments, ideological judgments. I am going to call balls and strikes like an umpire.

I have a new principle for judging Supreme Court nominees: Anybody who says all they are going to do is call balls and strikes is an automatic no because they are conning us. Deciding whether a particular rule in a State that restricts the ability of a woman to control her reproductive future is unduly burdensome is not a mechanical ball and strike. It is a value-laden judgment call. Don't tell me there is some easy ball-and-strike thing here. You are making judgment calls based upon values.

I don't have any doubt that a Justice Kavanaugh is going to vote to restrict, to control, to limit, and ultimately, to gut Roe v. Wade. Indeed, that is what the President said he was going to do--to appoint a judge who was going to take that step. That is why he is so widely supported in some parts of the country.

By the way, he said Roe v. Wade is a precedent. That is like saying this is a chair. That is a statement of fact. That is not a value. That is not a philosophy. That is just a statement of fact. Then he says: Well, we have Planned Parenthood v. Casey. So we have a precedent on a precedent. That is like saying this is a chair and this is a desk. That is a statement of fact. That is not anything that gives you any indication of what he says he is going to do.

By the way, Justice Gorsuch sat in my office and talked to me about precedent and how committed he was to precedent. He had written a whole book about precedent. I don't think he was on the Court even a year, and he voted in the Janus case to absolutely trample 40 years of precedent in a very important area of American law. So when somebody tells me it is a precedent or it is settled law, that doesn't convince me of very much. That is not a predictor of what they will do.

He has an expansive view of the State power to restrict individual rights. He has a narrow view of the national legislature's ability to protect individuals, whether it is healthcare, and I will give you 75 percent that he is going to start voting to undercut and destroy the Affordable Care Act.

In 16 out of 18 cases on the environment that came before his court, the DC Court of Appeals, he voted with the polluters. He narrowed the authority of the Environmental Protection Agency. In one case particularly relevant to my State, he decided against the right of the EPA to tell upwind States they had to control their pollution in order to benefit downwind States. Maine is in the tailpipe of the Northeast. All the air moves from west to east and ends up in Maine. We could shut off every automobile and every factory in Maine and still have air pollution problems. Telling the EPA they can't regulate air that moves across State lines is a direct shot at the State of Maine.

As for campaign finance reform, I predict he will join with the 5-to- 4 majority to continue the deregulation of campaign finance, one of the most serious issues facing this country.

He even said that net neutrality was unconstitutional because of the right of large internet service providers to have free speech. That is a case that would deny free speech and freedom of activity to millions of internet users across the country. You don't have to believe Dr. Ford to oppose and believe that Brett Kavanaugh should not be elevated to the Supreme Court.

You also don't have to believe Dr. Ford to believe that Brett Kavanaugh should not be elevated to the Supreme Court because of his views on Presidential power, but first let's establish what he said. In the Minnesota Law Review, he said we should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions. He has an elaborate argument about that involving impeachment and that the Congress should pass a statute and a whole lot of other things. We can argue about that. They are legitimate disputes about the meaning of article III and how it relates to impeachment and how it relates to the subject of the President being subject to criminal prosecutions. I understand that. I understand we can have those arguments, but once he stated that position, he should have announced that he would recuse himself from any case involving the President who appointed him--the first rule of the judicial canons.

Canon No. 2 is that a judge shall avoid not only impropriety but the appearance of impropriety, and 2a, from the Code of Judicial Responsibility says that a ``judge should act at all times in a manner that promotes public confidence in the integrity and impartiality of the Judiciary. Let me read that again: ``A judge should act at all times in a manner that promotes public confidence in the integrity and impartiality of the Judiciary.'' The reason for that is obvious. The Judiciary doesn't have the power of the purse. It doesn't have an army. It has to rest on public confidence.

He already violated that principle in his testimony to the Judiciary Committee last week. He violated that principle. Imagine the reaction of the public if a newly minted Justice Kavanaugh, within the next couple of years, votes in favor and, indeed, can provide the deciding vote, the swing vote, on a case involving the President who appointed him. I am not saying he can't take this position ever in his judicial career, but to have not recused himself when he had an opportunity to do so, to announce he would do so, to me, is disqualifying. It is obvious and mandatory that he should not take a position on a case coming before the Court involving the President who appointed him.

No. 3, we don't have to believe Dr. Ford to conclude that Judge Kavanaugh should not be confirmed to a lifetime job because we have been denied the ability to learn about his record.

Imagine, Mr. President, you are doing a job interview for a very important job in your company, and a guy comes in and says: I would like this job, and I am going to show you 10 percent of my work product. The 10 percent that I am going to give you is going to be picked out by an old buddy of mine whom I used to work for. In fact, he used to work for me. Oh, and by the way, once you hire me, you can never fire me; I am there for life.

Nobody would take that deal. Any employer in America would laugh at that job applicant. Yet that is exactly what we are doing here this week. We have seen 10 percent of his record in the White House and have been given no reason whatsoever why we can't see it all. People talk about, oh, we have seen 100,000 pages or 200,000 pages. That is not the point. He has a huge record, so the number of pages isn't the issue; it is how much of it we have seen as a percentage, and we have seen 10 percent of it.

If I were on the side of this case preparing to vote for this gentleman, I would be terrified about what is going to come out because it is all going to come out. The records of the Bush administration are going to be available in 2020 under the Presidential Records Act--12 years from the end of the administration. In 2020, all of these records will come out. In fact, I think they are going to start coming out in the next couple of weeks from the National Archives. I don't know what is in those records. There may be nothing. The fact that they are being withheld raises my main suspicions. Are they worried that something is in there that will derail this nomination, or do they know it?

Asking us to vote on this lifetime appointment, with no do-overs, no amendments, no chances, no repeals, when we haven't seen the entire record, is beyond me. There is no justification for it.

Even if I were inclined to vote yes, I would say: Wait a minute. You can't ask me to vote for this until I see all his records.

We haven't done it. It is ridiculous. There is no other word for it.

No. 4, we don't have to believe Dr. Ford to conclude Judge Kavanaugh should not be elevated to the Supreme Court because he has demonstrated he lacks the temperament and demeanor to be a Justice of the Supreme Court.

First, I think it is only fair to state the standard. What should be the standard for temperament and demeanor for a judge? Here is the standard, as I have seen it:

To be a good judge and a good umpire, it's important to have the proper demeanor. Really important, I think. To walk in the others' shoes, whether it be the other litigants, the litigants in the case, the other judges. To understand them. To keep our emotions in check. To be calm amidst the storm. On the bench, to put it in the vernacular, don't be a jerk.

This isn't me; this is the standard published to show and help display that you are trying to make the decision impartially and dispassionately, based on the law and not based on your emotions. Who established that standard? Who wrote it? Brett Kavanaugh. Those are his words from a speech several years ago at Catholic University. Proper demeanor. Calm amidst the storm. On the bench, don't be a jerk. Help display that you are trying to make the decision impartially and dispassionately based on the law and not based on your emotions. I don't see how anybody, with a straight face, can argue that Brett Kavanaugh met that standard last Thursday afternoon.

I had an interesting experience that day. I was in a hearing in the afternoon while he was speaking, and there was a television screen in the hearing room, but the sound was off because we were doing other committee work. Every now and then, I could look at the screen, and I could see him. I turned to the person sitting behind me and said: He is coming unhinged. What is going on? What is he saying? He is shouting.

You could see it. You could see his face contorted. Then, of course, I saw what he was saying. No one could argue that he demonstrated judicial demeanor in that hearing. In fact, something like 3,000 law professors, including 40 from Yale, have come out and said that based on that performance, he should not be confirmed to the Supreme Court. Justice John Paul Stevens, a retired Justice, in an extraordinary moment, said: This man should not be confirmed for the Supreme Court.

If you were from Mars, Mr. President, or from South Dakota and you knew nothing about the history of this matter, you knew nothing about the documents, the opinions, the philosophy, none of those things, and all you saw was that hearing that afternoon, you would say: This guy has no business anywhere near a courtroom.

His defense is, I was angry. I was being charged with something. My family is being threatened, and I am being threatened.

I understand that. All of us have thought about how we would feel if some unjust or untrue charge were made against us, whatever the nature, and a particularly heinous charge was made against him. I understand that he was passionate. But here is what really bothers me: What he said--the conspiracy, the direct insults to the Democratic Senators, the idea that he was a victim of a smear campaign--he had written down. That wasn't a spontaneous outburst--that he was so mad and caught up in the moment and said something he regretted--it was in written testimony. He had written it down, his answers to the questions.

Back to canon No. 2, avoid anything that would undermine confidence in the judiciary. He actually said, looking at the Democrats, ``What goes around comes around.'' Everybody knows that is a threat. He was looking at Richard Blumenthal, who is the plaintiff in a case called Blumenthal v. Trump, which is in the Federal district court in Washington and will eventually make its way to the Supreme Court based on the emoluments clause. How can Richard Blumenthal possibly believe he would get a fair and impartial hearing from somebody who said: ``What goes around comes around''? That phrase itself should be disqualifying. Anybody who talks about a political party or a group of people or millions of people or anybody else and says ``What goes around comes around''--that is disqualifying.

I think that based upon judicial philosophy, his failure to recuse himself from issues involving the President who appointed him--his refusal to say he will recuse himself in issues involving the President who appointed him, the incredible lack of documentation based upon his record, and his demeanor last week disqualify him.

No, you don't have to believe Dr. Ford to conclude, as I have, that Judge Kavanaugh should not be elevated to the Supreme Court.

Before I close, I should add one note: I do believe Dr. Ford.

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