Executive Session

Floor Speech

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Mr. BLUMENTHAL. Mr. President, I am honored to join these two eloquent colleagues who have each been champions for this cause as women speaking about the problem of sexual assault in our country--the epidemic of sexual assault that continues to be a scourge across our country. Most of my career in law enforcement, like my distinguished colleague from California, has been involved in making laws work for people and deterring exactly this kind of heinous lawbreaking. It is criminal. It is a crime, but it is one of the least reported crimes because of the public shaming and character assassination and mocking and ridiculing we have seen from men in power over just the last few days and weeks.

I want to say, as a man speaking on the Senate floor--and greatly honored to do so--to other men in this country, those men in power who have mocked and ridiculed Dr. Blasey Ford cannot be our role model. Those men in power--they may be colleagues and they may be the President of the United States who have belittled and demeaned and dismissed Dr. Blasey Ford and Deborah Ramirez and survivors across the country--do not speak for us. I believe Dr. Blasey Ford. I believe Dr. Blasey Ford because she was credible and powerful as a witness before us in what she remembered and what she so candidly said she couldn't remember. I believe Deborah Ramirez. I believe all of you who have written my office or called us, as many of you have done in other States to my colleagues, who have recounted the horrors of your personal experience with sexual assault, who have come to me as I have been in airports or rallies or other public meetings and shared with me your horrific story. I believe you. America believes you.

Let me say to Dr. Blasey Ford's sons, you should be proud of your mom. You should be proud of your mom because she is a profile in courage.

To Mr. Ford, you should be proud of your wife.

To all the men in America, we need to believe survivors of sexual assault. We need to protect and respect them, not just in word but in deed so they will come forward and tell us their stories so we can conquer scourge.

We should be proud of the brave women who have brought us truth that cannot be denied no matter how much character assassination and public shaming they have endured. We know their truth. This issue of how America moves forward on sexual assault is bigger than this nomination. It will last beyond the vote tomorrow. It will be a defining question for each of us as men, as human beings.

Judge Kavanaugh, in facing these allegations, has also revealed something profoundly significant about himself. When he came to the committee after Dr. Blasey Ford, he revealed his true character. He pulled back the mask on the judge and revealed the man. What we saw was someone filled with rage and spite, self-pitying and arrogant, deeply partisan, and threatening. We can disagree on Judge Kavanaugh's views on jurisprudential issues and policy and law. We can disagree on issues relating to his out-of-the-mainstream, far-right ideological position, but what cannot be denied is that picture of Judge Kavanaugh before our committee that indicated profoundly a lack of temperament and trustworthiness. That picture led former Justice John Paul Stevens to revoke his endorsement and to say his performance was disqualifying.

What we saw--as they say, a picture is worth a thousand words--was a man who refused to answer questions; he snapped at my colleagues; he spouted partisan conspiracy theories. That is the real Brett Kavanaugh--the Brett Kavanaugh who characterized Dr. Ford's serious and credible allegations as nothing more than ``a calculated and orchestrated political hit.'' He, in effect, depicted her as a puppet or a pawn of Senators or political figures, not people who came forward voluntarily in their own right and on their own initiative, as truly they did.

He was the Brett Kavanaugh who alleged that it was all ``revenge on behalf of the Clintons.'' He is the Brett Kavanaugh who, as the Portland Press Herald characterized it, ``ripped off the nonpartisan mask'' and never looked back.

He is the Brett Kavanaugh who threatened us, saying, ``What goes around, comes around.''

In Brett Kavanaugh's own words, a judge must be someone who is ``even-handed, unbiased, impartial, courteous yet firm, and dedicated to a process, not a result.'' Those are his own words. That is not Brett Kavanaugh the man. It will not be Brett Kavanaugh the Justice if he is confirmed.

Brett Kavanaugh revealed himself to be a partisan--an angry and bitter partisan--not an impartial jurist, and he did so in prepared remarks, planned and premeditated, well calculated, written word for word, and delivered word for word as he angrily turned the pages, and that is the message that, for me, resonates because I have argued cases in the Supreme Court. I have spent a career standing before judges. Some of their rulings I liked; some of them I disliked. Some of their conclusions I thought were maybe incorrect. But I knew that those men and women wanted to be impartial. When they put those robes on, as Brett Kavanaugh has done, they left party and partisan interests at the door.

Now, when I go to the U.S. Supreme Court, if Brett Kavanaugh is confirmed, there can be no trust or confidence that he will be that impartial jurist. It is and will be a stain, a cloud, on the U.S. Supreme Court. All the Supreme Court has in the way of power is the trust and credibility and confidence of the American people, which will be diminished forever.

So let me pose a question to my colleague from California because she has so well described the voir dire process. It is jury selection, where we make an effort to pick jurors who are impartial and nonpartisan.

I say to Senator Harris, if Brett Kavanaugh came to a courtroom where the Senator was trying a case as an attorney general, and he were in the jury pool to be picked for a jury, would the Senator pick him as a juror? After that appearance before our committee, would the Senator allow him to sit on a case where the Senator was litigating?

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Mr. BLUMENTHAL. I think this issue of temperament--and I am going to pose a question to my colleague from Washington--is fundamental to our system of justice in this country. Courtrooms are sometimes really emotional places, and sometimes they are angry places. The function of the judge is to remove the emotion and the anger, to be impartial and balanced and even keeled.

So for a judge on the DC Circuit Court of Appeals to engage in the kind of angry outburst--it was not spontaneous; it was not the result of some accusation in the moment. It was calculated. It was premeditated. It was written the day before. It was inexcusable and unacceptable.

I will ask my colleague from the State of Washington, since she is not a lawyer, perhaps to her credit: If the Senator were appearing in a courtroom with Judge Kavanaugh, wouldn't the Senator ask that he step away from the case, that he recuse himself in light of what he has said about all Democrats, about vast classes of people--this anger that he has expressed?

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Mr. BLUMENTHAL. I will yield back to my colleague from California, but let me just close my part of this colloquy by saying that we saw the real Brett Kavanaugh before us on that day at that moment, and I think my colleagues, if they review that picture, a picture is worth a thousand words. If they apply common sense--we should not leave common sense at the door. If they put themselves in the shoes of someone appearing, seeking justice, they will vote against Brett Kavanaugh and the disrespect that he showed that brave survivor, Dr. Blasey Ford.

I yield back to my colleague from California.

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Mr. BLUMENTHAL. Thank you, Mr. President.

At some point during the confirmation hearing--now seemingly years ago but probably only just a month or so ago--I saw young women going through the halls of the Capitol with T-shirts that said ``I am what's at stake.'' I want to thank those young women and all of the countless women and men of all ages who have come to our Nation's Capital to show us what democracy looks like.

I know that some of my colleagues have been displeased--in fact, have called it mob rule--but the power and force of democracy within those voices and faces--a lot of them were from Connecticut, and I am proud of your coming here to tell us what you think both for and against this nomination. That is what democracy looks like. When we reject the voices and faces of democracy coming to tell us their truth, we lose something very precious. It is of equal importance to the townhalls and the meetings and parades and all we do at home. I do a lot of it at home, but I was proud of the folks from Connecticut who came here and the folks who came from all over the country from as far away as Alaska and Hawaii to give us the benefit of their insight and perspective. ``I am what's at stake'' is the message those women were conveying to us in real time.

We talk here in words. Sometimes we hold up posters. We talk in abstract; that is, the legal parlance of the courts and our legislature. But our decisions have real-life consequences, and the appointment of Brett Kavanaugh and the confirmation that likely will take place tomorrow will affect real people in real time for generations to come because it is for a lifetime.

The courts are among the most anti-democratic institutions in our country, the greatest democracy in the world and the most enduring of any democracy. They are lifetime appointments. They are insulated generally from attack or even criticism because folks who criticize a judge in his or her presence can be held in contempt. They have powers to punish contempt by immediately jailing someone. They are anti- democratic so long as they fail to reflect the will of the people if there are excesses, if the nomination and confirmation process goes off the rails. And that is what is happening here--a broken promise and process that has caused a rush to judgment simply for the sake of arbitrary deadlines and irrational timelines placed on a nomination that is fundamentally flawed.

A lot of my colleagues have relied on personal assurances from Brett Kavanaugh in their chambers. He talked to me an hour, and he assured me, I heard my colleagues say. He assured me that he will not overturn Roe v. Wade, but his answers to us under oath on those topics were evasive and misleading.

When I asked him, for example, in our hearings about Roe v. Wade, he repeated the vague commitment to settled precedent, but he couldn't explain why he referred to that precedent in his Garza dissent as ``existing precedent.'' It would be like introducing your wife as ``my current wife.'' How long do you think that wife is going to be around?

He referred to abortion-on-demand. These kinds of code words sent a signal to the Federalist Society and the Heritage Foundation, and they were the direct cause--or at least one of them--for his being on the President's short list after he hadn't been on it before he issued that dissent.

Looking to what he has actually written and said is a much keener, more reliable insight into what he will do, more than personal assurances.

His writings indicate that he believes, in effect, in a President who can refuse to enforce the Affordable Care Act simply because he deems it unconstitutional. He concludes, in his vision of the Constitution and his interpretation of the statute, that they are in conflict, even after the Supreme Court of the United States upholds it and a prior President signs the law and a Congress passes it.

That kind of monarchial power is an anathema to our constitutional sense of checks and balances, and the result could well be--in fact, likely will be--that millions of Americans will be deprived of protections when they suffer from diabetes and heart disease, Parkinson's, high blood pressure, pregnancy--the preexisting conditions for which the Affordable Care Act was designed to afford people protections in insurance.

Healthcare, women's reproductive rights, the right of a woman to decide when she wants to have children, the right of people across America to decide when they want to marry the person they love, consumer rights, workers' rights, environmental protection--all are at stake to real people in their real lives for generations to come. ``I am what is at stake'' applies to every American.

I have never been angrier or sadder since coming to the Senate. This nomination was essentially the result of a rush to judgment and of a coverup, starting with the concealment of millions of pages of documents. Those documents are in the National Archives. They belong to the people of the United States, but the White House chose to hide them.

Then, there was a straitjacketed sham of an investigation into sexual assault--yes, a sham; really, a whitewash--that refused to interview dozens of witnesses, some of them eyewitnesses who could corroborate the credible and powerful allegations made by sexual assault survivors.

My office spoke directly to Kerry Berchem. There is a more recent report out tonight--an excellent report by NBC--about how she and others tried to be interviewed. They sought and beseeched the FBI to talk to them, but the FBI was given a list because the purpose of that investigation was not to find the facts. It was to offer cover. It was to permit our colleagues to say there has been a seventh investigation.

Have my colleagues read those six investigations? Do they understand that the general practice--we can't talk about the details on the floor, of course--of the FBI is to begin at age 18, not before? Do they understand that the general practice of an FBI background investigation is to interview professional colleagues, coworkers, supervisors, and references that are suggested by the nominee to any particular position?

The seventh investigation was really the crucial one regarding those allegations of an individual 17 years old or even 18, in college, where there was no reason in those earlier six investigations to go back. The FBI was straitjacketed, and that is a disservice to the U.S. Supreme Court, to the Senate in our constitutional responsibility, to the people of the United States, and, ultimately, to Brett Kavanaugh, himself, because these allegations will not be going away any time soon. They will hang over him and the Court as a cloud and a stain for years and years to come. Facts and evidence have a really powerful way of coming out. Eventually, facts and evidence have a way of finding a way to the public realm.

From the beginning, this nomination has been a crucial test for the Senate and for the Nation, but this fight is about more than just this Supreme Court seat. It is about a courageous and credible sexual assault survivor who came forward. Actually, she expressed concerns to friends before the nomination was made about Brett Kavanaugh's possible nomination. She recounted her story years before even the seat opened, as documented by her therapist's notes and her husband, who, by the way, was never interviewed. Her husband was never interviewed. Talk about corroborating witnesses. Her therapist's notes were never reviewed, and she herself was never interviewed by the FBI. That is an absence of factfinding. And, of course, Judge Kavanaugh was never interviewed, as well.

She came forward to say she was sexually assaulted by Brett Kavanaugh, and the details of her claim were lacking in some part. She was frank to admit that she couldn't remember everything, which is not atypical of sexual assault survivors, as the experts would have told the FBI if they had interviewed some experts. But she could remember some parts of that story, and they are details that I will never forget: the laughter from Brett Kavanaugh and Mark Judge, the third person she knew to be in that room--the laughter at her expense. The mocking and ridiculing laughter are so vivid in her memory. It is the same mocking and ridiculing laughter that we heard at some of the rallies where the President mocked and ridiculed her--the same mocking and ridiculing that, for decades, have been applied to survivors of sexual assault who come forward. She has endured the same nightmare of public shaming and character assassination and threats--potential retaliation that all too often has silenced sexual assault survivors. She braved that nightmare, knowing full well what was coming, but maybe she thought it would not come from Members of the Senate. Maybe she had that naive hope, and if she had it, she was wrong.

Our colleagues here said she was mixed up. They said they believe her, they find her credible, but she must be wrong about the identity of the person who attacked her. Well, that echos to the second point that rung true and vividly in her testimony when she was asked: Could it be mistaken identity? Absolutely not. Was she sure it was Brett Kavanaugh? 100 percent sure.

I have a message for my Republican colleagues: You can't believe the survivors only when they say what you want to hear. You can't believe the survivors for only those parts of the story that are comfortable and convenient. You can't believe them only when they tell you how they have been hurt, horrifically harmed, but not the person who harmed them and hurt them. And you can't believe them if you reject the possibility of a thorough, complete, fair, and impartial investigation into all of the facts and the evidence.

My Republican colleagues say they would like to believe Dr. Blasey Ford and they would like to believe Deborah Ramirez, but there is no corroborating evidence. You cannot believe survivors without seeking the corroborating evidence. You cannot believe them if you turn a blind eye to witnesses who come forward and not only are willing but, actually, in effect, pound at the FBI's door.

I reviewed those interviews with the people who were on the list that the FBI permitted to be interviewed, but I have also reviewed the mounds of tip line records. I don't know how many of my colleagues have done so. They are fascinating and illuminating and profoundly revealing because there are actually tips from people who came forward and had a personal connection to the events of interest. Of course, I am barred from providing details, but none of them were contacted or interviewed. That is not an investigation. That is not an investigation by the FBI worthy of the FBI's name.

I offer no criticism of the FBI because they were, in effect, narrowly circumscribed, limited, straitjacketed, handcuffed by someone in the administration. We need to find out who it was and how it was done. Both women offered evidence of the kind that is routinely offered in sexual assault cases. They can prove that they told others about their experiences long before the current nomination fight. Christine Ford had a polygraph test and therapist notes. And both women can point to a history of Brett Kavanaugh acting inappropriately when drunk. What my Republican colleagues apparently mean when they say there are no corroborating witnesses is that none were permitted to tell their story to the FBI, not that they weren't available.

I would like to say that this approach to sexual assault survivors is a thing of the past, a throwback to some other time, but the fact is that it remains real in the lives of survivors around this country today. They should know that we are going to stand with them, that this example of, in effect, failing a proper and complete impartial investigation is far from acceptable to us.

I want to make a commitment to my colleagues and the public that I will continue fighting to find the facts. The American people deserve to know why the FBI failed to complete a full investigation of these powerful and credible allegations. They deserve a full understanding of what the investigation would have found. They deserve full access to Judge Kavanaugh's record--those millions of pages of documents that were concealed and that raise the question: What are they hiding? What are they afraid of the American people seeing from the time that Brett Kavanaugh served in the White House as Staff Secretary?

I filed an FOIA suit to force disclosure of millions of pages of Judge Kavanaugh's documents that have been hidden from the country. The majority leader chose to vote without seeing those documents, but I have no intention of stopping in this effort until they have been disclosed--and they will be. They will come out, adding to the cloud and the stain.

The allegations here are desperately serious. They are credible and powerful, and our job was to make sure that the facts and the evidence either supported them or not.

Debates over the Supreme Court often focus on civil rights and civil liberties, those protections enshrined in the first 10 Amendments to the Constitution. Make no mistake. Those rights and liberties are at stake here. But this Supreme Court debate is also about the fight between powerful corporate interests and ordinary Americans. Corporations have become adept at using the courts when their arguments fail to persuade policymakers and the American people.

When the EPA bans polluters from spewing poison into the environment, polluters go to court to stop that Agency. When the FCC prevents cable giants from censoring the internet, those companies go to court to stop that enforcement.

When the Labor Department or the NLRB take action to protect workers or when the CFPB or FTC take action to protect consumers, big employers and financial services firms go to court to stop them. If you want to breathe clean air and drink clean water, if you want a free and open internet, if you want to work or purchase products free of corporate abuse and fraud, this fight is about your life. It is about you.

This nomination poses a clear and present danger to those enforcement efforts. He poses a danger to the rights of women to decide when they want to have children and to millions of Americans with preexisting conditions who want to keep their affordable health insurance. He poses a danger--clear and present--to workers and consumers who want to live free of corporate domination. He poses, most dangerously, a threat to the checks and balances that prevent a President from running this country like his own personal fiefdom.

In his opinions, his speeches, his writings, and his testimony, we can see where this nominee will take the country if he is a swing vote, as he is likely to be on so many of these issues. He has used those dog whistles or bumper stickers in his campaign for his nomination, those terms and buzz words, ``abortion on demand.'' Sometimes he uses a bullhorn, as when he promises conservative organizations that he will overturn longstanding, near-unanimous precedents that have fallen out of favor with the rightwing or when he goes out of his way to publish long dissents, articulating a radical understanding of the law and its value.

He has been not so much a nominee as a candidate for office. He has been campaigning for this job since law school. Like many candidates for office, he has spent that time demonstrating to potential political patrons that if they pick him, he will diligently represent their interests. He is their guy. That is how he became a member of that elite group on the President's short list.

I will conclude by saying that most chilling--indeed, frightening for me--was his appearance before this committee when he gave a rant and a screed that was written the day before, so he said. It was delivered word for word from that text. It was hardly the result of some spontaneous insult or outburst. It was calculated and planned. It took back the mask of the judge and revealed the man--bitter self-pity, rageful, and a deep partisan, which he had demonstrated before throughout his career as a party operative but perhaps not on the bench. The man revealed there said to us: ``What goes around comes around.''

He said that the powerful allegations of the sexual assault survivors were the result of a leftwing conspiracy fueled by revenge on behalf of the Clintons. Those remarks demean the brave and courageous survivors who came forward on their own initiative, without any encouragement by any Senator, and they were degrading to Christine Blasey Ford and Deborah Ramirez and to the survivor community. They were directly contrary to Judge Kavanaugh's own test of what a judge should do:

The Supreme Court must never be viewed as a partisan institution. The Justices on the Supreme Court do not sit on opposite sides of the aisle.

He was sitting on one side of the aisle. In fact, he was sitting on one distinct side of that side of the aisle. That is the reason former Justice John Paul Stevens found his appearance before that committee-- not only his prepared remarks but what he said after--as disqualifying. That is the reason the 2,400 lawyers and professors and former judges have written urging that his nomination be rejected. That is the reason I find most frightening.

I have appeared four times before the U.S. Supreme Court. Every time has been an extraordinary honor, and I have spent a good part of my career standing in front of judges, sometimes with juries and sometimes not. What I prized in judges most importantly was that they were nonpartisan, that they were objective and neutral. I don't know how lawyers or ordinary parties to any case could stand before Judge Kavanaugh now and feel they will be judged fairly and impartially.

My colleagues have come to accept these vague assurances from nominees that they will simply call balls and strikes, that they will follow settled precedent, but we have seen those vague promises betrayed when judges or Justices actually reach the Court.

I look to what he said in that hearing before the Judiciary Committee as a warning about what will happen if Justice Kavanaugh is confirmed. What he wrote in the op-ed today in the Wall Street Journal provides no assurance because the real Brett Kavanaugh came before our committee, and the real Brett Kavanaugh wrote down in advance what he felt. The real Brett Kavanaugh should not be confirmed to the U.S. Supreme Court. Even at this late hour, I hope my colleagues will heed that warning.

We may lose this battle, but we cannot lose the broader struggle for justice in this country. I will stay angry. I hope my colleagues and others around the country will as well.

To the young people who came to these halls wearing that T-shirt, ``I am what's at stake,'' you are right. You are what is at stake. Stay angry.

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