Speeches

Mr. President,

It is an understatement to say that the last few weeks have been unusual in Senate history. I have never seen anything like it in the 8 years that I have been serving in this body.

Every day when we show up to work, as we walk to our offices, we have to walk through a sea, a mob, of angry protestors, people screaming, shouting, yelling things at us--not pleasant things. In many instances, Members have to be accompanied as they walk to and from their offices, to and from the Senate floor where they cast their votes, to and from their committee hearings, in and out of rooms where they have to conduct their business.

This is unusual. It is unpleasant. It is relatively unprecedented, certainly, in the time that I have been here. It is unfortunate and unnecessary. You see, this is not how the process is supposed to work. This is not what the Constitution contemplates or requires in connection with the confirmation of a Supreme Court nominee. It doesn't need to work this way, but in this case, it did. It did because a lot of people, starting with a small handful of people, made a deliberate choice to depart from the norm, to depart from rules, practices, and operating procedures that are designed to protect the innocent and the guilty, designed to protect accusers and th accused, designed to protect the privacy of people who come forward with allegations as well as those who have been nominated to serve in high positions.

The allegations brought forward by Dr. Christine Blasey Ford were serious. I still remember and will never forget the precise moment when I was briefed on the nature of these allegations on September 13, 2018. I was briefed by a small handful of Judiciary Committee staffers who had clearance to read to me an FBI document they had just received. I wasn't allowed to share the details of that communication with anyone--not even members of my own staff--because at the time they were confidential, couldn't be discussed with the public, and couldn't be discussed with anyone who hadn't received specific clearance from the FBI to do so.

At the time these allegations were brought forward, I was able to tell my staff only the following: The allegations raised by this individual--I didn't know her name at the time--are serious. They are serious to the point that I will not support this nominee. I cannot and will not vote to confirm this nominee if these allegations are true, but the allegations are of such a nature that they could be looked into. We can discern whether or not they could be corroborated. We can interview witnesses in an effort to get to the truth.

Over the last roughly 3 weeks, that is what has happened. We have undertaken everything we know how to do to get to the truth.

We have had FBI agents interviewing witnesses. We have had witnesses interviewed by committee staff. We ourselves have interviewed Dr. Ford and Judge Kavanaugh. It was at the hearing where we heard from Dr. Ford and Judge Kavanaugh when we learned for the first time that Dr. Ford's attorneys--I will just state here parenthetically--were oddly recommended by the ranking Democrat on the Senate Judiciary Committee. But Dr. Ford's attorneys--those same attorneys recommended by the ranking Democrat on the Senate Judiciary Committee--failed to ever inform Dr. Ford that, from the outset, she wouldn't have to go through the process this way. From the outset, she could have and would have been given the opportunity to tell her story in private to FBI agents who would have met her at her home in Palo Alto, CA, interviewing her in the privacy and comfort and protection of her own home with confidentiality.

That separate group of FBI agents could have and would have then visited Judge Kavanaugh and any of the other alleged eyewitnesses to this event, and at that point, those reports would have been collected and eventually handed over to the Senate Judiciary Committee.

The committee then could have and would have had the opportunity to convene a closed hearing and to investigate these allegations without having to subject anyone to the indignity of discussing very detailed private circumstances of their lives in front of the American people.

It remains clear to me that Dr. Ford never wanted a circus. She never asked for any of this. She was reluctant to come forward. Ultimately, she agreed to allow her name to be released at the moment she recognized that there were enough people who were going to figure out who she was, but she didn't want to have to tell her story in public. She could have and would have and should have been given the opportunity to tell her story in private, but that is not how it happened because her lawyers didn't tell her.

Even after her name came forward, even after she felt compelled to disclose her name, her lawyers apparently didn't tell her that Judiciary Committee staff would be willing to fly out to California and meet with her in private in her home or anywhere else she wanted to meet. That apparently was not communicated to her. One must ask the question why. Why didn't they tell her that? I don't know. At this point, I can't know that.

The conversations that occur between attorneys and their clients are typically and permanently confidential, but just as an objective witness to a lot of this and, again, not privy to their private conversations, I have to wonder whether at best her lawyers may have been neglectful in telling her that she had those options. At worst, they may have deliberately sacrificed her privacy, her comfort, and her interests in pursuit of their own vain ambitions or perhaps a political agenda. Either outcome is unfortunate. Either way, we got there led to the same outcome, and we are where we are.

For the last 3 weeks, we have done everything we can to get to the bottom of these allegations. We have had witnesses interviewed. We ourselves have interviewed Dr. Ford and Judge Kavanaugh.

At the end of this, what we see is someone who has been badly hurt. It is apparent to me that Dr. Ford was harmed and has endured deep pain. Someone hurt her, and they hurt her badly, but there is nothing to corroborate her allegation that it was Judge Kavanaugh who hurt her.

Not one of the alleged eyewitnesses to this event can confirm that such a gathering ever occurred, either in the summer of 1982 or at any other time--not one. A number of the witnesses have said that not only do they not remember such an event ever occurring but that this type of event with this set of circumstances and with this combination and number of people would not have happened. This is not how they gathered.

So we are left with an uncorroborated accusation against an individual who has led an exemplary life, a life of public service that includes now 7 FBI background investigations and some 150-plus interviews conducted by the FBI. Again, a lot of that was conducted prior to his appointment to the U.S. Court of Appeals for the DC Circuit, where he served for 12 years and published some 300 opinions, in which he has had no objective other than to find the right answer under the law.

This is someone who is a model, exemplary citizen from everything we can tell. He serves his community. He feeds the hungry. He clothes the naked. He serves his fellow beings with a love and an admiration for them that is genuine, distinct, and consistent. Against this backdrop, we cannot, we will not, we must not take a single uncorroborated allegation and sink this man's hard-earned good name. The demands of justice are such that we have to hear accusers and those who have been harmed, but without corroboration, we cannot assume someone to be guilty in the absence of an adequate evidentiary foundation.

So I would add here that maybe we do know something more than that because other allegations have come forward. Well, yes, there are other allegations, but let's talk about the other allegations for a minute.

The Ramirez allegation came forward about a week after the Washington Post announced Dr. Ford's name. A story by The New Yorker was itself debunked less than 24 hours after the story was run--debunked by the New York Times, which acknowledged having interviewed literally dozens upon dozens of witnesses in an effort to find corroboration for the Ramirez allegations. Not one person could or would corroborate the story--not one. Moreover, as the New York Times concluded, there were a number of instances in which Ms. Ramirez herself, in calling former classmates from Yale, acknowledged that she didn't know whether or not it was Brett Kavanaugh who engaged in the conduct she alleged.

The other allegation brought forward by the client of Mr. Avenatti was itself on its face of a different sort than the others. This allegation was brazen in what it assumed about Judge Kavanaugh and what it asked the public to believe. It accused this man, this lifelong public servant, of engaging deliberately in a sustained criminal enterprise that had as its object the deliberate drugging and gang rape of young women. Here, again, is a story that could not find a single shred of corroboration and was severely undercut by a number of other factors, including the fact that the accuser herself was not even in high school at the same time as Judge Kavanaugh, and no one alleged to have been present had any recollection either of the parties described or of any of the circumstances surrounding these alleged events.

But the timing of these other allegations coming forward was nonetheless used to smear the good name of Judge Kavanaugh and to imply some sort of guilt on the part of Judge Kavanaugh and some sort of corroboration of the Ford allegation. Again, the Ford allegation was itself serious and had a lot of indicia of credibility on its face. That is why I was so concerned the moment I heard about it. That is why we have now spent 3 weeks doing everything we can to get to the bottom of it and finding no corroboration.

But here we are with these protests going on, with a sea of angry people shouting at us everywhere we go; chasing Senator Cruz and his wife out of a restaurant as they were peacefully enjoying dinner; verbally and physically assaulting Senator Perdue and his wife as they were making their way from a flight into Reagan National Airport to their vehicle, for a sustained period of 30 minutes, including a moment when Mrs. Perdue was nearly pushed down a flight of stairs. These incidents come in the wake of other unfortunate events, including a moment when Rand Paul was attacked at his home and broke six ribs, causing him excruciating pain and injuries that have the potential of affecting him for the rest of his life. This same Rand Paul was himself also the potential victim of a shooting when a crazed leftist decided to show up at a Republican baseball practice and opened fire on Republican Members of Congress simply because they were Republican Members of Congress, almost killing Congressman Steve Scalise in the process.

This moment of emotional intensity came as a result of a process that some are now struggling to say is broken. I insist that it is not. The process isn't broken. There is nothing wrong with the Constitution. It certainly is not broken. To the extent something wrong happened here, it is not because the thing itself doesn't work or because it is flawed by its very nature. It is because in this instance, the left broke it. The left sabotaged it. The left deliberately impeded its ability to do what it was supposed to do.

It is not as though this isn't without precedent. They have done this in the past. They have done it for decades. They did it with Judge Bork, when they converted his last name into a verb when they accused him of being a racist and a sexist. They pretended to be outraged when they found out that Judge Ginsburg had smoked marijuana. Then, a few years later, they engaged in a high-tech public lynching of Clarence Thomas. They later did it again to Sam Alito, calling him a racist.

Then they did it to Neil Gorsuch, calling him a sexist.

These efforts aren't limited, of course, to Supreme Court nominees. They also deliberately went after Miguel Estrada, specifically and admittedly because he was Latino. They tried to take down Amy Coney Barrett's nomination to a Federal appellate court because they considered her ``too Catholic.''

This is unacceptable. We have been asked to settle for this. It is not time to settle. It is time to expect more. It is time to demand more. It is time to demand a process that is respectful of human beings--of the accusers and the accused in the world. It is time to do this in a manner that respects this institution and allows us to respect each other.

You have to remember that when we reduce our arguments from matters of policy, in which we acknowledge good faith disagreements, to simple and emotional questions of good versus evil, people are going to tend to believe that characterization. Ultimately, they are going to tend to act on that characterization.

The results will not always be pretty. At some point, this descends to a moment when the victim will no longer be someone's character or reputation or pride or the quiet enjoyment of someone's dinner or the ability of someone not to be injured while mowing his lawn. At some point, this is going to be one of us or it is going to be someone's husband or wife, someone's children.

Earlier this week, we received news that someone had deliberately released personal, private information regarding Members of the Senate--Republican Members of the Senate, not coincidentally--with the promise and the threat that even more information would be released, including information about medical records and histories of our children, for the specific purpose of influencing and intimidating Members into taking a particular position on this nomination. This is unacceptable.

It is also unacceptable that in the response to the attack on Rand Paul, which I mentioned a moment ago, an MSNBC anchor actually referred to that horrific event for Senator Paul and his family as one of her favorite stories. That is not OK.

All of this hurts real people, not just Members of the Senate, not just Dr. Ford and her family or Judge Kavanaugh and his family, although it certainly hurt them. It also hurts the Senate. It hurts the Supreme Court. It hurts our very constitutional Republic as it was set up, as it was designed.

So again, we get back to this question: Why does this happen? I think a lot of it has to do with the fact that it happens because you cannot take this many eggs from the American people and put them in one basket without creating a lot of really high, intense emotions.

You cannot require the American people to work many weeks or many months out of any year just to pay their Federal taxes and not have them be very emotional about what happens in Washington.

You cannot concentrate this much power in Washington, DC, and take power away from the American people, where the power is supposed to be mostly exercised at the State and local levels, and move it away from them in two steps: first, from the people to Washington and then, within Washington, from the people's elected representatives, who are supposed to make law, to unelected, unaccountable bureaucrats, who make law without any accountability to the people. You cannot do that without unavoidably, inevitably, and unsustainably raising the political temperature in this country. It cannot be done. It is the nature of the thing itself.

Sometimes we have to stop giving in to the impulse to expand the size and scope and reach of the Federal Government because it tends to make the people less powerful. The whole system was set up so as to lower the political temperature in the country.

We are a diverse country. In one way or another, there has always been great diversity within the country, among and between the States and their different populations. This was understood by the Founders; it is understood today. This is one of the reasons why, by divine design, this whole thing was set up in such a way as to lower the political temperature in Washington by keeping most decisions close to the people at the State and local levels, recognizing that there is a whole lot more unity at the State and local levels than there is at the national level. That is why most powers are supposed to remain close to the people through the States and localities.

Sometimes our instincts are wrong. Sometimes our instincts lead us into danger. Sometimes we fear the wrong things.

People in this country, understandably, are terrified, scared to death of rattlesnakes. I myself am scared to death of rattlesnakes. We have them in my State of Utah. We don't like them. Most people are shocked, however, to discover there are many times more people killed every year as a result of deer than rattlesnakes. Deer, it turns out, cause all kind of accidents, which, in turn, result in a lot of deaths--many more deaths, many times more deaths every year than rattlesnakes. But we fear the rattlesnake more because it looks scary.

Sometimes our instinct leads us in the wrong direction. Sometimes our instinct is to do something through government that might make matters worse rather than better.

It reminds me of a time when I worked across the street at the Supreme Court of the United States. I was a law clerk to Justice Alito. My co-clerks and I worked in a relatively small office. We discovered something during the summer when we started our job. The air conditioning in our office made our office unbearably cold. It was so cold as we sat at our desk and wrote memoranda to the Justices and did our jobs, sometimes our hands would get so cold that we almost couldn't feel them. What did we do? We went over to the thermostat and turned up the thermostat, thinking that would solve the problem. But after we turned up the thermostat, it didn't do any good. It was still freezing cold. At that point, we opened the window and let in the hot, muggy air that is known to inhabit and pervade Washington, DC, during the summer months. It was inefficient, but we couldn't figure out another way. We talked to the maintenance people in the building. They weren't sure what to make of it, so we moved on.

As summer faded into fall and fall became winter, it got cold. We had a very similar problem but in the other direction. When it got to be winter, when it was really cold outside, it was burning hot inside our office. It was so hot, we were sweating, so hot we felt compelled to walk over to the thermostat and turn the thermostat down, hoping and expecting, reasonably, that it would lower the temperature and alleviate our discomfort.

It didn't do a bit of good. It was still burning hot. What did we do? We opened the windows. It was inefficient and created a weird feeling in the office--at times burning hot, at times freezing cold, depending how close you were to the window.

After many months of this, the head maintenance inspector for the whole building came in and looked at the heating and air conditioning system within the office. After taking it all apart, he came to us and said: I think I have found your problem. Your thermostat was installed backward. Every time you were turning the thermostat up to raise the temperature, it was lowering the temperature. Every time you lowered the thermostat, it was, in fact, raising the temperature.

Sometimes things have the opposite effect from what we want. I believe it has often been with the best of motives and instincts and intentions that we have taken power to Washington, DC, concentrating, centralizing more power here in Washington, DC, and then allocating it to unelected, unaccountable bureaucrats, and, in some cases, Federal judges.

In the process, we disempowered the American people. We disconnected them from their own government. This, in turn, has raised the temperature when it comes to things like confirming a Supreme Court Justice. This, by the way, was often done in the past by a voice vote without even the need for a roll call vote. Sometimes it was done unanimously; sometimes it was done overwhelmingly. Not every nominee was confirmed. I don't think that should ever be the case.

Even in George Washington's administration, not every nominee to the Supreme Court was confirmed, but nominees were treated with dignity and with respect. This occurred in part, I believe because the Constitution kept the temperature appropriately moderated; the Federal Government was doing only those things that the Constitution unmistakably placed in the hands of the Federal Government and of Congress, which sets policy for the Federal Government. The people, in turn, remained in touch and connected to that government, to the extent it affected them because that policy was still being set by the people's elected representatives in Congress and not by unelected, unaccountable jurists or bureaucrats.

The opposite has happened since then. It is not the case that every Supreme Court nominee in recent history has brought about so much contention. You look at the confirmation process that led to the ultimate appointment of Ruth Bader Ginsburg, of Stephen Breyer, of Elena Kagan, of Sonia Sotomayor. These occurred in recent decades. These Justices were confirmed overwhelmingly, and they were confirmed with a lot of votes from Members of both political parties.

It doesn't have to be as contentious as it always is, but in this instance, with Republican nominees--with conservative nominees--the left has been unwilling to allow the process to even move forward as it should and has chosen instead to smear these individuals and to treat them in an unkind, undignified manner.

No mother and no father would want to see a son or a daughter subjected to this kind of treatment, not in our country, not for a position like this. No one would want that. It does not have to be this way.

If we can correct course, if we can figure out that we have in some ways been working with a broken thermostat, if we can acknowledge the fact that in trying to make things better, sometimes we make them worse by bringing more power to Washington and then handing this power over to unelected, unaccountable bureaucrats and judges, we can do this. We can lower the temperature, lower the stakes in the United States of America.

We live in a diverse Republic. We need to allow the people in all of their diverse viewpoints throughout the various States to work things out as they deem fit. Let Utah be Utah; let New York be New York; let Nebraska be Nebraska. We don't have to make as many decisions in Washington, DC, as we have been.

I believe, ultimately, this will come down to a question like this. We have a choice to make--a choice between federalism; that is, restoring the proper balance of power between different actors within our system of government on the one hand, or contention and, ultimately, violence on the other hand.

I choose the peaceful way. I choose the way that doesn't result in as much contention. I choose the constitutional way. I believe that document was written in such a way as to protect our liberty, to respect our divergent interests, and to allow the American people to flourish and prosper because not every decision would have to be made by the same people, and the government would remain accountable to the government. Federalism is the answer.

At the end of this long and grueling process, I am grateful for the system we have. I hope we can return to its constitutional origins and respect the letter and the spirit of the Constitution of the United States.

I yield the floor.