Executive Session

Floor Speech

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Mr. MERKLEY. Mr. President, I wish my colleagues were here to share in this dialogue because there is such an absence of other Members sharing with each other their perspectives. We have a world that is enhanced by a media world that lives in a different universe that accentuates the differences between the parties.

I think we are on a course that does deepen the differences across America. I hope there is some way we can find in this Senate to be able to communicate across that growing chasm in a more effective manner.

I have heard many of my colleagues speak to the issue of fairness on this floor. I offer just a brief, couple of sentences of points for you to consider as to why not all of America shares the perspective that this has been fair.

When Dr. Ford was invited to come to speak to the committee, she said that she would like to come, but she wanted some time, and she would like to have corroborating individuals be able to appear before the committee. That was denied by the committee, and that bothered many people in this Chamber a great deal. Even in 1991, Anita Hill was given that opportunity.

What is also very bothersome to individuals is that Dr. Ford had put forward a list of eight individuals whom she had asked the FBI to talk to, to be corroborating witnesses, and the FBI could talk only to those within the scoping document that comes from the White House because, at that moment, they are not doing a criminal investigation, they are doing a background investigation, and they have to follow the President's instructions. Those instructions, we are told, were not to talk to any of the corroborating witnesses, not the 8 she put forward and not the 20 who were put forward by Debbie Ramirez. So 28 individuals were not brought before the committee and not talked to by the FBI.

I hope we have lots of opportunities to share our perspectives across the aisle to understand as we struggle with the issue of fairness because for many of us, fairness has not been achieved. The bigger message to these two women who came forward to share their journeys, to share their experiences, is that the U.S. Senate was unwilling to hear them out, unfortunately.

Thank you.

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Mr. MERKLEY. Mr. President, our Founders had a very clear design for the ability to put individuals into high posts of great responsibility. They really wrestled with it. They considered giving the ability to appoint judges and executive officers to the assembly, as it was referred to. I think we have to worry a lot about individuals swapping favors. One person saying: You support my friend, and I will support yours--that wouldn't lead to those with the best qualities serving in these key positions.

They concluded after great debate that it would go to a single individual, the President, to nominate. They realized that the President can go off track. They thought the President might express favoritism of a variety of sorts. Alexander Hamilton talked about this at some length: maybe favoritism to people in the home State, maybe favoritism to a close group of friends, maybe favoritism to individuals who were doing favors for the President. Who knows? Therefore, there had to be a check on the potential abuse of the appointment process. That is where the Senate came in, to advise and consent--the President, to nominate; the Senate, to consent. What that meant is that the Senate could not interfere with the President on the nomination process, and the President was not to interfere with the Senate in the confirmation process. Yet we have right now, for the first time in U.S. history, as far as anyone has been able to ascertain, a case in which the President of the United States has interfered greatly, first of all by requesting that the Senate not look at all 3 years in which this individual, Kavanaugh--the nominee--served as Staff Secretary to President Bush. Second of all, the President appointed an individual to provide the stamp of Presidential privilege on documents for when he served at the White House that they did not want the Senate to see. We have some of those documents. He said: Those are OK. Yet they censored 100,000 documents with the Presidential privilege stamp. This has never been done, ever, as far as we can determine.

This body, on a bipartisan basis, requested all of those documents. This was not a case of the President saying ``Please don't request,'' like with the Staff Secretary; this is a case in which the Senate together said ``Give us the documents,'' and the President refused.

This is something we should all stand together and say: Unacceptable. It is unacceptable that the President stepped across the separation of powers to interfere with the work of this body to review the nominee's record. The fact that there have not been loud cries of protests from the leadership of this Senate is a shame on this institution--that it has not fought for the separation of powers embodied in the Constitution. It has not fought for the ability of each and every Senator to be able to exercise full responsibility when we took our oath of office to review the records of nominees, engage in the advice and consent exercise.

Is this to be a precedent for the future because the leadership here has so shamefully abandoned the core principles of the Constitution and the responsibilities of this Chamber? I hope not. I hope that, together, all 100 Senators will find in the future they will make sure the President cannot interfere with our responsibility.

This is only one of the many problems, the many concerns, about Brett Kavanaugh. Brett Kavanaugh didn't raise a single voice about the interference of the President with the exercise of this body. He is being nominated to the Supreme Court. He is supposed to have read the Constitution at some point. He is supposed to understand the separation of powers. He is supposed to stand up for the principles embodied in that great document, and he did not. That alone should tell you this man does not belong on the Supreme Court.

Then, of course, there is the fact that he has a view of Presidential power that is above and beyond the law. Try to find that in the Constitution.

Among the 25, he was the one who had the most expansive view of Presidential power. He is the one the President chose. Why is that? Because the President is under investigation for conspiring with Russia to fix the election. That is why. He is worried. He is up at night. He wakes up early. He tweets out to the world--angry, hostile. He wants to make sure he has a Justice on that Court who can help write a ``get out of jail free'' card. What a conflict of interest. What a conflict of interest that this Court might have to rule on whether a President can pardon himself. It is something we have never had to worry about before, whether a President can fire a special prosecutor, despite the writing under the law.

That is not all. We have before us a nominee who has been deceptive and misleading to this Chamber time after time. Different articles have put up different lists. They all come down to here is what he said, and here is the truth. Here is what he said, and here is the truth.

I want to pivot, though, to perhaps the most shameful, difficult part of this nominee; that is, his record of abuse toward women and the complete failure of this body to look into that.

I heard earlier on the floor of this Chamber a number of my colleagues across the aisle use the word ``fairness.'' ``We want fairness.'' I heard it from one, two, three, four colleagues, ``fairness.'' Did a single one of them express any regret that when Dr. Ford came forward and asked for those who could corroborate her testimony, asked for the Judiciary Committee to hold a hearing with those folks able to testify? Did they express any regret they turned her down?

Even in 1991, the Judiciary Committee brought forward people to corroborate Anita Hill's story. Here we are 27 years later, and we don't treat a woman coming forward to share an experience of sexual abuse--we don't even allow those individuals who can corroborate to testify before the Judiciary Committee.

Did I hear a single Republican stand up and say ``I am embarrassed we treated her so poorly''?

Let's take Debbie Ramirez. She laid out a list of 20 individuals. The Judiciary Committee had a lot to say about her experience. Did they invite her to testify and be able to tell her side of the story? No, they did not. She had a list of 20 individuals who could provide corroborating information. Did they ask a single one of those 20 to come before the committee? Did they allow a single one to come? No, they did not. There was no fairness in that committee. Let's be clear about that.

Let's not hear more highfalutin arguments about fairness from the other side of the aisle when these two women were treated in such an egregious and awful fashion.

Then, there is the phony FBI investigation. I praise my colleague who insisted that the record be reopened, the background check be reopened for the FBI to provide an opportunity to check out these experiences shared by Debbie Ramirez and by Dr. Ford. On a background check, it is not a criminal investigation, and the FBI can't decide who to talk to.

Did I hear a single Member across the aisle express any embarrassment about the fact that they let the President constrain the investigations so not one--not one--of the eight people Dr. Ford asked to be talked to was talked to? Not one. Zero. You call that fair? That is not fair. That is not fair to her, that none of the people she asked to be talked to were talked to.

Did I hear a single person across the aisle express any reservations about the fact that that FBI investigation was so constrained by the President of the United States, with advice from the Republican leadership, that they did not talk to one of the 20 people Debbie Ramirez asked to be talked to about her experiences in college?

You know, 1 of the 20 was a suite mate of Mr. Kavanaugh's. Well, when you go through your freshman year and you are a suite mate, you share a common living area, and there is one bedroom here and one bedroom here, so you are with each other all the time. You know a lot about the other folks. Well, that is a pretty powerful association. That individual is now a professor at Princeton Theological Seminary, and he heard this story when it happened. He heard about it, and he lived right there in the suite, and he thought it was horrific.

I heard some colleagues say there was no one who could substantiate her story. That is simply false, and it is shameful to allege that there is no one when you know there is. It is unacceptable to call something fair when you deliberately instruct or encourage the President to make sure that the people who can provide the information are not talked to.

This individual, now a professor at Princeton Theological Seminary, has a very fine reputation. He was so upset about this, he talked about it with his roommate his first year in graduate school long before Mr. Kavanaugh ever came close to any type of nomination debate. So you can't really say that he made it up now when he told another person about it long ago. And that individual was on the list to be talked to, but did the FBI talk to him? No, because the President wouldn't let the FBI talk to him, and the President consulted with the Republican leadership, and they didn't want anybody talked to who could actually corroborate these stories.

That is a rigged system. For anyone on this floor to say that is anywhere close to a form of justice, that is not true.

These women have been horrifically treated by this Chamber. Just as the country knew Anita Hill was treated so poorly, so will, for decades from now, people talk about the abuse of power that emanated from my colleagues across the aisle against these women.

Across this land right now, women have been reliving their own experiences of abuse. It has been an extraordinarily painful experience. They have been calling our offices. I am sure they have been calling all of our offices. I got on the phone and took many calls today. I heard story after story. It takes a lot of energy out of your heart to listen to individuals say, I am sharing this with you, and they start crying on the phone--person after person.

I also have all of the stories that have been written and sent to me as letters. I thought I would share a few of them with you.

Here is a letter:

What a farce! The disrespect to Dr. Ford and to victims everywhere. I am sincere in saying that this TRIAL is turning my stomach. I have fought back tears. I am a victim of similar offenses. It is no better, and in some ways worse, that it is a woman going after Dr. Ford in a subtle attempt to cloud the trust of her experience.

Well, what is she referring to when she says it is a woman going after Dr. Ford? She is talking about the fact that the leadership on the Judiciary Committee hired a prosecutor to come in and act as if Dr. Ford were a criminal on trial and to interrogate her as if she were a criminal on trial. That is what this individual said ``is turning my stomach.'' And it turned my stomach, too, to see that abuse of power here in the U.S. Senate.

Another letter:

Hello, Senator. It has been 21 years since I was raped. I had at the time only shared my story with the emergency room doctors, the police, and my mom. Since it occurred, I have only shared my story with my husband, until this week on Twitter with the ``why I didn't report'' hashtag.

With each new accusation against Brett Kavanaugh, it has forced me to relive all the horrible memories from the night my assailant raped me. This moment in history and the fact that the majority of Republican Senators who have either tried to discredit the women coming forward or victim blame and shame them has literally made the event so fresh in my mind; as though it just happened all over again yesterday.

As like Dr. Ford, the details of dates, exact time, exact clothing, are not extremely forthcoming to my memory, although I remember the colors of what we were both wearing. The fear, his actions, what I was feeling, and what was said during the rape, I will never forget. And I will never forget the smell of the cologne he was wearing and how it makes me physically ill when I smell it to this day.

Kavanaugh can have his fake tears and shout his anger all he wants because I guarantee you, if the man who raped me was trying to get a job on the Supreme Court, and if I had the strength to come forward like Dr. Ford did, then he too would yell and scream at the realization he was being confronted and that it was about to be taken away from him. Not to mention, my sexual assault assailant would NOT require an FBI investigation either.

And what is she referring to there? She is referring to the fact that Dr. Ford took a polygraph exam, and Dr. Ford asked for an FBI investigation. Mr. Kavanaugh did not take a polygraph exam, and Mr. Kavanaugh did not want an FBI investigation. Quite a difference there.

Here is another story:

Five years ago, I was assaulted by a trusted friend in my dorm room. Although I don't recall some critical details, indelible in the hippocampus is the humiliation and fear of retaliation. That is why I never reported, even when school nurses urged me to.

Years later, I suffered PTSD and rarely feel entirely safe.

Watching Kavanaugh's angry, arrogant performance was deeply triggering to me--would my attacker act the same way if I outed him?

And would he also find the support of 33 percent of Americans, just like Kavanaugh?

Until now, I haven't shared that I am a survivor with even the closest of my friends and family. But it is too important to stay quiet now.

Here is another story:

Hello, Senator Merkley. When I was young in the early 1970s, I was raped for an entire year by someone close to our family. I didn't tell. I didn't tell because his warnings and threats were too powerful and frightening for the child that I was.

The man went on to become active in a leadership role. He was, in fact, in a position to give talks about morality and principles, all the while knowing how he affected my life. Because that was the year he took my childhood away.

Watching Dr. Ford's testimony was tough, but I did it.

I always knew if I came forward against the man who did this, it would be his word against mine and as a female, I would lose. So I stayed quiet, never naming him publicly and never will.

But I'm writing today to ask you for two thing, please--if you hear any of your fellow Senators say ``I know his character. He would never do that. He's never done anything like that in front of me,'' please remind them that they don't like witnesses. For me, there was never a hint of an assault until he got me alone.

And if you hear your fellow Senators say, ``But it happened almost 40 years ago,'' please assure them that in the victim's heart, mind and life, it happened last week. It happened yesterday. It happened today. Because you never get past what was done to you. Ever. You can't.

She went on to share that she wrote this letter to me and deleted it and wrote it again and deleted it several times. She had just deleted it again when her husband came in the door carrying a statement that someone had posted on the doors in the neighborhood that happened to have a quote from me, one of her two Senators, and she took it as a sign, and she decided to write that letter again and send it.

She said:

Now maybe what happened to me will bring about some good.

I know all of us are getting letters like this.

When she said she never came forward because it would be ``his word against mine and as a female I would lose,'' she is relating exactly what happened to Dr. Ford.

It was set up he said, she said, with no corroborating witnesses called even though Dr. Ford asked for them. And then because it was he said, she said, my colleagues could stand up and say: Just can't prove it. Can't prove it.

But why didn't my colleagues stand up and say: It is an outrage that we didn't call the people she asked us to call. It is an outrage that there was this phony FBI investigation that didn't talk to any of those people.

What she was talking about right here is how Dr. Ford was treated in this Chamber, that she would lose because men in power would rig the system and find for the man. That is what has happened here.

That is what happened with Ms. Ramirez, Debbie Ramirez. She had corroborating information from the suite mate of Brett Kavanaugh, but we here, this Senate, we rigged the system so that that information could not be considered. That is what this woman is talking about, why she didn't come forward, because it would be her word against a man's. The system would be rigged and would find for the man. That is what is so disturbing to women all over this country--a rigged system, that we couldn't find in our collective judgment, in our collective process, the ability to rise against partisanship and give fair treatment, a fair process, to the individuals who came forward. It may not have changed the course of events and the final vote, but at least women would know we have come from where we were. We may not have been entirely fair to Anita Hill, but we have learned and we have come further. Instead, we did worse. That is a regrettable, powerful consequence of what has happened.

Another constituent wrote to say that although he was not a direct victim of assault, both of his brothers were repeatedly sexually abused by a Catholic priest who spent 8 years in prison for abusing as many as 150 boys. He went on to say that this priest was in charge of a boys' choir even though it was known that he had issues with sexual abuse.

His brothers were part of the choir, and he is troubled, he writes, that his younger brother served in the same choir he did, and even though he was aware there was a problem, he didn't intervene.

He says, referring to the priest:

He ruined our lives. Though I was not directly a victim of his abuse, I carry with me the shame of not knowing to speak up about what I saw.

He says that shame is amplified because his younger brother sang in the same choir for a time.

He goes on to talk about a culture of power and privilege, where people think they can abuse others and get away with it.

He says:

We are seeing this behavior being accepted at the highest level of office in our country.

He goes on to relate that this is similar to the culture of abuse towards women.

He says:

The culture of abuse towards women is being openly perpetuated by the leaders of our country. The people we are supposed to put trust in.

That was the end of his quote.

He went on to say:

I have never felt like it was my story to tell. The only reason I tell it is because it illustrates how dangerous these power structures can be and how easily they can be abused. We have to take great care when choosing who to give great responsibility to.

Have we in this Chamber recognized how easily our power structure can be abused? Did we rise to insist on fairness for individuals who brought their stories forward? Did we insist that they have the opportunity to have their witnesses and corroborating information considered by this Chamber? We did not. We failed them. We failed this country. And when he says that we have to take great care when choosing who to give great responsibility to, he is saying we should have taken great care. And we know that in this particular nomination, there are two powerful pieces of it. One, it is lifetime, so the person will serve for decades. The second is, it is the top Court.

Are there not individuals in this land of hundreds of millions of people who have stellar records of character who could serve on that Court?

I hope that across America, it will come to great discussion and lead to changes in how we think and how we behave. I hope that between now and the vote tomorrow afternoon, there will be some Members of this Chamber who will decide to take seriously the responsibility that we had and that we failed to exercise appropriately. We will decide that, you know what, yeah, we are going to close debate, but we haven't yet voted to put this man on the bench, and with the committee having conducted a completely rigged process, we need to stop and rethink what we are doing and not put Brett Kavanaugh on the Court.

Thank you, Mr. President.

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