Nomination of Brett Kavanaugh

Floor Speech

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Mrs. GILLIBRAND. Madam President, today and these past several weeks have been deeply painful for many in this country. Today it is a painful day for millions of women all across the country who are rightly worried about losing their basic civil rights. It is a painful day for the brave and courageous survivors who have had to relive their trauma and, in some cases, have found the courage to tell their story for the very first time.

It is also a painful day for men who hope to see this Senate stand on the right side of history.

Today, in just a few hours, the U.S. Senate is going to turn its back on righteousness. It is going to turn its back on fairness and reason, and, make no mistake, it is going to turn its back on women.

What we have seen over the last few weeks is an exercise of power: Who has it and who doesn't. Rather than a search for the truth, we have seen those in power ram through a nominee who is unfit to serve on the Supreme Court. Ultimately, this is about the power structure of America, but it is changing, and it is changing fast.

I want to say something right here from the Senate floor to every woman in America who is listening: I hear you. Many of my colleagues in the Senate hear you. We hear your stories. We hear your voices, and we will be certain they will not go unheard.

I have heard from constituents all across my State. I have been talking to people for the last several months, and I have been talking to people specifically about this nominee for the past several weeks. I have heard from friends who have been sexually assaulted. I have heard from friends whose daughters have been sexually assaulted. I have heard from people who are outraged about what is happening in this country right now--outraged at a process that doesn't seek the truth and doesn't seem to be fair.

Unfortunately, it is a moment when survivors are having to relive the worst moments of their lives in real time by just watching the news.

So I am going to read a little bit of information that was submitted to the Senate Judiciary Committee on September 27 by Jessica Davidson from End Rape on Campus. She writes a very heartfelt letter about her own trauma, about her own experience with sexual violence, and about the representation she provides from her organization.

She writes:

We envision a world in which each individual has an educational experience free from violence, and until then, that all survivors are believed, trusted, and supported. Each year, we assist nearly 1,000 survivors and their families directly, conduct educational campaigns, support student activists, and to advocate for policy reform efforts that reach millions of individuals.

She asked:

How many more viral online moments must be created before an incredible harm and trauma we have experienced is enough to be taken seriously when a survivor comes forward? And why is the burden always shifted to those who have experienced the harm?

She says an American is sexually assaulted every 98 seconds. Just imagine how many lives are being destroyed.

She says more than an estimated 17,700,000 women and 2,780,000 men have experienced an attempted or completed rape since 1998; 3 million college students will be sexually assaulted this fall alone; 18,900 military servicemembers bravely serving our country experienced sexual assault in 2014; and one in every four voters in the United States is a survivor--more than half of all voters in the United States know a survivor. Survivors make up a significant portion of each U.S. Senator's constituencies, and survivors everywhere deserve to know that if they come forward, they will be taken seriously.

I received thousands of calls, hundreds of letters, and I have read some of those letters this morning. They are so disturbing and so upsetting. I can't imagine what that must be like to deal with in this moment that we are in when you have Members of the Senate who either don't believe credible survivors or, if they do believe them, they don't care.

For every survivor out there who feels she is not being heard, not being listened to, not being believed, I want you to know there are those of us here who do believe you, who have heard you, and who will fight for you. Your voices are being heard, and they do matter. Your willingness to protest, to stand tall, to speak out, and to speak clearly over these last few weeks has been extraordinary. It has been powerful. It has been meaningful. It has made a difference.

So do not fear that what you have done was a waste of time. Do not fear that speaking out doesn't matter because it does. The energy and inspiration you have created is going to drive this movement forward.

I also want to talk a little bit about why Brett Kavanaugh should not be serving on the Supreme Court, why he doesn't deserve this seat, and I want to talk a lot about his record and what we know about Brett Kavanaugh as an individual.

Over these last few weeks, we have learned a lot about this nominee, even before we found out that more than one woman had accused Judge Kavanaugh of sexually assaulting her. His judicial record was already clear, and many of us made our decisions to oppose Judge Kavanaugh based on that record--that judicial record and statements alone. That was the first reason I opposed him--because I have no doubt he will undermine women's rights on the Supreme Court.

I will say more about his judicial record in a moment, but what we all saw and heard over the last few weeks isn't something that you can actually discern from a judicial record. More than one woman has come forward with sworn statements under penalty of perjury, saying Brett Kavanaugh committed acts of sexual misconduct against them. One of them, Dr. Blasey Ford, even bravely testified before the Senate Judiciary Committee. She was under oath, and she relived one of the worst moments of her life on national television. She was credible. I believed her.

When my colleagues asked her what she remembered most clearly, her strongest memory was the laughter. She said that ``indelible in the hippocampus is the laughter--the laugh, the uproarious laughter between the two, and their having fun at my expense.''

She said: ``They were laughing with each other.'' She said: ``I was, you know, underneath one of them while the two laughed, two friend--two friends having a really good time with one another.''

She was direct, and she did not evade any questions. She did not duck or dodge like someone who was trying to hide the truth.

When my colleagues asked her with what degree of certainty did she believe Brett Kavanaugh assaulted her, she said: ``One hundred percent.''

When I was watching her testimony sitting there in the room, there were many moments when her testimony brought me to tears. I thought the way she opened was particularly moving. She said:

I am here today not because I want to be. I am terrified. I am here because I believe it is my civic duty to tell you what happened to me while Brett Kavanaugh and I were in high school. I agonized daily with this decision throughout August and early September 2018. The sense of duty that motivated me to reach out confidentially to the Washington Post, Representative Eshoo's office and Senator Feinstein's office was always there, but my fears of the consequences of speaking out started to increase.

During August 2018, the press reported that Mr. Kavanaugh's confirmation was virtually certain. His allies painted him as a champion of women's rights and empowerment. I believed that if I came forward my voice would be drowned out by a chorus of powerful supporters.

By the time of the confirmation hearings, I had resigned myself to remaining quiet and letting the committee and the Senate make their decision without knowing what Mr. Kavanaugh had done to me. At the same time, my greatest fears have been realized and the reality has been far worse than I expected.

Apart from the assault itself, these last couple of weeks have been the hardest of my life. I have had to relive my trauma in front of the entire world and have seen my life picked apart by people on television, in the media, or in this body who have never met or spoken with me. I have been accused of acting out of partisan political motives. Those who say that do not know me. I am a fiercely independent person and I am no one's pawn.

My motivation in coming forward was to provide the facts about how Mr. Kavanaugh's actions have damaged my life so that you can take that into serious consideration as you make your decisions about how to proceed. It is not my responsibility to determine whether Mr. Kavanaugh deserves to sit on the Supreme Court. My responsibility is to tell the truth.

That is a woman of extraordinary humility and extraordinary courage.

I want to compare Dr. Blasey Ford's testimony to Judge Kavanaugh's testimony right after her. We all saw it. Some of my colleagues have suggested that because multiple women were making very credible accusations against Judge Kavanaugh that he had a right to be angry, that he was right to come out strong and fight back, like a politician would. Really? Is that how a judge is supposed to act? Not according to Judge Kavanaugh.

I want to quote from a law review article he wrote 2 years ago about how a good judge is supposed to act:

To be a good judge and a good umpire, it is critical that you have the proper demeanor. We must walk in the shoes of other judges, the lawyers, and the parties.

It is important to understand then to keep our emotions in check, and be calm against the storm. To put it in the vernacular: to be a good umpire and be a good judge, don't be a jerk.

Judge Kavanaugh would have been well served to listen to his own advice.

I was shocked by his tirade against my colleagues and my party. I was disturbed by its vindictiveness, his animosity. I want to quote from his testimony to remind you of exactly what he said at his hearings. Every time I see these words, I am in disbelief that a sitting Federal judge--a nominee for the Supreme Court--said them to the Judiciary Committee in prepared testimony under oath.

He said:

This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election.

Fear that has been unfairly stoked about my judicial record.

Revenge on behalf of the Clintons. And millions of dollars in money from outside left-wing opposition groups.

Supreme Court Justices are supposed to be thinking about the law and only the law, not elections, not political parties, but now we know exactly what Judge Kavanaugh is thinking about. He is thinking about politics. He is thinking about leftwing conspiracies. He is thinking about the 2016 election and Trump and the Clintons.

Those aren't my words; those are his words, his testimony. He said them directly to the committee under oath while the entire Nation was watching. He showed us his true colors. He showed us what he does when he is under pressure. He showed us how he really feels about our politics and our political parties, even though he said he always stays far away from politics because judges aren't supposed to go there.

He showed us what he really thinks, deep down, when his back is against a wall. Think about that. A sitting Federal judge, a nominee to the Supreme Court, shouting--shouted about Democrats trying to take him down.

It makes me wonder, even if you love every judicial decision this judge has ever written, how can any of my colleagues argue, after hearing that tirade, that this judge is unbiased? It makes me wonder how any of my colleagues can ignore that fact. It makes me wonder, to my colleagues who are so desperate to confirm Brett Kavanaugh at all costs, what decisions by this judge are you so eager to see? What do you already know about how the supposedly fairminded judge is going to rule that you would risk the Court's reputation by putting such a blatant partisan on the bench?

A retired Supreme Court Justice, John Paul Stevens, who was appointed by a Republican, even came so far as to change his mind and oppose Judge Kavanaugh. Why? Because Judge Kavanaugh is now clearly biased. He said:

He has demonstrated a potential bias involving potential litigants before the court that he would not be able to perform its full responsibilities.

And I think there is merit in that criticism and that the Senators should really pay attention to it.

For the good of the court, it's not healthy to get a new justice that can only do a part-time job.

I agree with that. When the next big gerrymandering case comes before the Supreme Court, we already know how Judge Kavanaugh feels about Democrats because we heard directly from him at the hearing, so we can't expect him to rule fairly in that case.

What if a forced arbitration case related to sexual harassment comes before the Court? We all heard Judge Kavanaugh say under oath that credible allegations of sexual assault are nothing but a leftwing conspiracy, so we can't expect him to rule fairly on that one either.

There are real consequences to the bias and partisanship and anger Judge Kavanaugh showed at his hearing. I am incredibly disappointed by this, and I hope my colleagues think about this one last time before they cast their votes today.

I would like to talk a little bit about his record as a judge. Whose side does he take? Whom does he believe?

In one case, in a dissent, Judge Kavanaugh said employers should not have to give their workers insurance that covers birth control if they don't want to. In other words, he thinks a boss's religion is more important than a worker's religion. Does that sound fair to you, Madam President?

In another case, he had to decide whether a pregnant teenage immigrant girl should be allowed to have an abortion. He made her wait for 9 weeks before he said no, and then he was overruled by his judicial colleagues. He said he didn't think what he did to the girl was an undue burden. Does that sound fair to you?

Let's not forget that President Trump said he wanted the new Supreme Court Justice to overturn Roe v. Wade, that he wanted to nominate someone who would automatically vote to overturn it. He chose Brett Kavanaugh to get the job done.

If this Chamber confirms Judge Kavanaugh, I have no doubt that the Supreme Court will take away women's reproductive rights. I have no doubt that the Supreme Court will tell women they aren't allowed to make their own decisions with their own doctors about their own health.

I want to speak about another part of his record. Judge Kavanaugh wrote in an opinion that if the President doesn't like a law, then the President could ignore the law and ignore the courts. This is what he said. As you listen to this, let me know if you think this is judicially sound judgment. 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.''

Anyone with the most basic understanding of how our constitutional system of government works knows that this is not what our Founding Fathers designed. Anyone who has been paying attention to President Trump's attacks on our institutions and his repeated attempts to undermine the Mueller investigation should be alarmed by that statement alone. It makes me think President Trump's choice for this nominee was because he wanted to be protected from the Mueller investigation.

I am also deeply concerned about Judge Kavanaugh's record on money in politics.

It should come as no surprise that Judge Kavanaugh is on the side of big money interests that pollute our political system. Kavanaugh was handpicked by White House Counsel Don McGahn, a former FEC Commissioner who was notorious for his hostility toward campaign finance laws. Indeed, Judge Kavanaugh fulfills President Trump's promise to nominate individuals in the mold of Justice Scalia, a steadfast opponent of campaign finance regulations.

Like McGahn and Justice Scalia, Kavanaugh has made his opposition to campaign finance laws clear during his time on the DC Circuit.

In 2011, Kavanaugh authored an opinion that would allow foreign nationals to spend unlimited funds on issue ads in U.S. elections. Let me say that again. Kavanaugh authored an opinion that would allow foreign nationals to spend unlimited funds on issue ads in U.S. elections. That is the Bluman v. FEC decision.

Kavanaugh presided over a lawsuit brought by foreign persons living in the United States who wanted to make campaign contributions to candidates in U.S. Federal elections. Although Kavanaugh upheld provisions of Federal election law banning foreign persons from contributing directly to a candidate or party, Kavanaugh found that federal election law ``does not restrain foreign nationals from speaking out about issues or spending money to advocate their views about issues.''

Under his reading of Federal election law in Bluman, Kavanaugh would only take issue with a small fraction of the election meddling perpetrated by the Russian operatives indicted by Special Counsel Mueller.

At his confirmation hearing, Judge Kavanaugh was given the opportunity to directly address the possibility that his decision in Bluman opened the door for ``Vladimir Putin . . . to buy issue ads in American elections.'' Judge Kavanaugh's response to Senator Whitehouse was misleading, indicating that the Supreme Court affirmed the case unanimously, which, while true as to foreign contributions to candidates, was not true on the point of issue ads.

Indeed, Judge Kavanaugh's response to a question for the record from Senator Coons also revealed his misleading response to Senator Whitehouse's question. He wrote: ``The challengers in Bluman did not seek to make contributions to organizations that make expenditures on issue ads. The opinion made clear that the court's `holding does not address' whether `Congress might bar' foreign nationals living temporarily in the United States `from issue advocacy and speaking out on issues of public policy.' '' The Supreme Court unanimously affirmed the decision.

Judge Kavanaugh seeks to have it both ways. He brags about his opinion being unanimously upheld by the Court, but when he is confronted with the real-world consequences of his decision, he hides behind the pleadings.

According to Special Counsel Mueller's indictment, the issue ads run by Russian operatives seeking to meddle in the 2016 election include the messages ``JOIN our #HillaryClintonForPrison2016''--I don't even want to read the others; they are so horrible. ``Donald wants to defeat terrorism . . . Hillary wants to sponsor it.'' Yet Judge Kavanaugh's Bluman decision would permit foreign actors to run advertisements like the ones above without consequence. In fact, legal briefs filed by lawyers for the Russian operatives indicted by Special Counsel Mueller cite Kavanaugh's Bluman opinion for the proposition that ``[f]oreign nationals are not barred from issue advocacy . . . such as what is described in the indictment.''

Judge Kavanaugh opposes limitations on big money in politics. During his confirmation hearing, Judge Kavanaugh was confronted by Senator Klobuchar with an email he wrote in March 2002 wherein he suggested that contribution limits could be unconstitutional: ``And I have heard very few people say that the limits on contributions to candidates are unconstitutional, although I for one tend to think those limits have some constitutional problems.'' When Senator Klobuchar pressed Judge Kavanaugh on whether he believed that ``contribution limits have constitutional problems,'' Judge Kavanaugh evaded the question and issued a nonresponsive answer.

In a 2016 American Enterprise Institute speech, Kavanaugh said that political spending ``absolutely'' deserves First Amendment protection because ``to make your voice heard [in politics] . . . you need to raise money to be able to communicate to others in any kind of effective way.''

In 2009, in EMILY's List v. FEC, Kavanaugh heard a challenge to multiple FEC regulations restricting the use of ``hard-money'' by nonprofit organizations in Federal elections. These particular regulations were passed in striking down these regulations. Kavanaugh held that nonprofit organizations are ``constitutionally entitled to raise and spend unlimited money in support of candidates for elected office'' because it is ``implausible that contributions to independent expenditure political committees are corrupting.''

These are really concerning statements about unlimited money and spending in politics from foreign nationals on issue ads and from moneyed interests. I do not believe that money is speech, and I do not believe that corporations should have the same free speech rights as individuals, but Judge Kavanaugh does, and I find that to be deeply troubling.

Judge Kavanaugh also has a very disturbing record when it comes to rolling back the civil rights of millions of Americans.

In his time as a judge, Brett Kavanaugh has consistently sided against Americans who are trying to exercise their civil rights. From voting rights, to employment discrimination, to the rights of those with disabilities, Kavanaugh has taken positions that perpetuate inequality. Judge Kavanaugh's record leaves little doubt--if confirmed to the Supreme Court, he will continue to roll back the hard-won rights of millions of Americans.

As a partner at Kirkland & Ellis, Kavanaugh was involved in Rice v. Cayetano, which challenged Hawaii's right to limit participation in an election for the State's Office of Hawaiian Affairs to Native Hawaiians. In a brief he cowrote with Robert Bork and Roger Clegg--the latter of whom heads the anti-affirmative-action Center for Equal Opportunity--Kavanaugh argued that restricting participation to Native Hawaiians was unconstitutional. According to Kavanaugh, it did not matter that Hawaii's ``voting qualification in elections for the Office of Hawaiian Affairs [was] designed to remedy past discrimination in voting against `Hawaiians' in Hawaii.'' Discussing that decision in a 1999 interview, Kavanaugh said that the ``case is one more step along the way in what I see as an inevitable conclusion within the next 10 or 20 years when the court will say we are all one race in the eyes of government.''

Kavanaugh's adoption of Justice Scalia's approach from Adarand Constructors v. Pena that ``in the eyes of government, we are [all] just one race'' indicates a belief that the government should be ``color blind.'' Under this theory, affirmative action and minority contracting requirements would be constitutionally prohibited.

Those are just some of the issues that I care about and that New Yorkers care about. I am very troubled about this nominee for so many reasons--for his record, for his beliefs, for his judicial temperament, for how he treated women Senators during that hearing.

When we vote on this nomination later today, when we decide whether Judge Kavanaugh deserves to have the privilege to serve on the Supreme Court, there is just one fundamental question that I believe should be on all of our minds when we make this decision: Do we as a country value women? Does the Supreme Court value women? Does the Senate value women? Does the President? Most of all, does Brett Kavanaugh value women?

Millions of Americans--millions of women--are watching us today. They are waiting to see whether, when a woman comes forward and says she is a survivor of sexual assault, this Chamber--do the individuals here take her seriously? Do we listen to her, or do we disregard her and disbelieve her and patronize her?

The last 2 weeks have been so incredibly painful for women who have experienced sexual trauma, for survivors all across this country. When they are watching some of the most powerful people in this country disregard Dr. Blasey Ford--they distrust her, they disbelieve her, and they devalue her--it is painful for all of them. It is painful because they are tired of seeing the same old outcome every single time. They are tired of the same old scenario where the men are believed and the women are not. They can't believe their eyes when they see two women being treated with so little respect and with less of a process than even Anita Hill received.

One of the worst parts of this process has been that we have been through it before. Almost three decades ago, Anita Hill sat right where Dr. Blasey Ford sat. She went through the same kind of cross- examination. She was disbelieved. She was patronized. She was disrespected. We said we would never put another woman through that. We said we had learned lessons from that fiasco. We said it would never happen again, but it did. And I really believe that the process over the last few weeks was shameful. We should have learned from our mistakes, and we should be doing much better.

But I can tell you, America's women are watching. They are watching what our leaders decide to do. They are watching who is listening and who is not. And they have made a decision that I could have never imagined or predicted. So many women in this country--and men--have made the decision since President Trump was elected that they are going to be heard. They are going to march. They are showing up at townhalls. They are showing up outside of Federal offices. They are coming to Washington. They are knocking on Senate doors. They are speaking out. They are protesting. They are carrying signs. They are speaking their truth, and they are speaking truth to power in a way they perhaps never imagined they would do.

They are running for office. Over 200 women are running for Congress alone as nominees of their party this year--more than ever in the history of America. They are working hard to right the wrongs that they see happening in this country.

They know that what makes this country great--what has always made this country great--is that we have cared about one another, that we are a country that believes in the golden rule, and that we are a country that believes you should care about the least among us.

Every generation has tried to make this country a more perfect union. Whether it is fighting to end slavery through abolition; whether it is fighting for basic voting rights for all Americans through the suffragist movement; whether it is the civil rights movement saying that equality is necessary in this country and people must be protected by the law; whether it is the LGBT equality movement to ensure that we can marry the people we love; whether it is people's desire today to ensure healthcare as a right and not a privilege, this is what our country is about.

I deeply feel that the process over these last few months has turned our backs on that basic desire to bring our country to a more perfect union, to a place where we value one another.

Do we value women? Unfortunately, for too many in this Chamber, the answer is no.

I hope the American people are listening. I hope they are watching. I hope they will fight for what they believe in, their values, and what this country stands for.

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