Nov 15, 2018
Oct 12, 2018
Oct 6, 2018
I come before this body this evening after having heard several remarks from a number of my distinguished colleagues, whom I like, whom I respect, whom I admire, and with whom I greatly and substantially disagree on many matters discussed tonight.
Just in the last little while, I have heard arguments presented first by the Senator from Maine, a good friend of mine, who made some arguments that he put into roughly four categories. He opposes Judge Kavanaugh on the basis of judicial philosophy, on the basis of his refusal to agree anticipatorily to certain types of recusals, to the absence of documentation he claims was available to the committee, and to Judge Kavanaugh on issues of demeanor. I would like to address each of these allegations in turn.
First, with regard to judicial philosophy, my friend from Maine--who truly is a friend--explained that, in his view, Judge Kavanaugh was unacceptable because, among other things, he counts among those he admires, among his judicial role models, the late William Rehnquist, Chief Justice of the United States. The reason that is apparently a bad thing, according to my colleague from Maine, is that this somehow indicates that he would view himself sort of as an umpire, calling the balls and the strikes, reading the law on the basis of what it says rather than on the basis of what he or anyone else might wish were the law.
Jurists, you see, are not philosopher kings, not even when they get onto the Supreme Court of the United States. They are not there to impose will but judgment.
You see, as Alexander Hamilton explained in Federalist 78, there is a difference between the type of government activity that goes on in the judiciary and the type of government activity that goes on in the legislative branch. In the judiciary, they exercise judgment; that is, they read the law. They figure out what the law says. When two or more parties come before the court's proper jurisdiction, they interpret the law on the basis of what the law says. That, Hamilton explains, is judgment.
Will, on the other hand, is deciding what the law should say, what policies are best for the U.S. Government. That is the prerogative of this branch. That is the prerogative of the political arms of the Federal Government. That is not the prerogative of our friends across the street who wear black robes.
So I was surprised to hear that my colleague from Maine, the junior Senator from Maine, Mr. King, was saying that he objects to the judicial philosophy of Judge Kavanaugh on the basis that he says he would call the balls and strikes as he sees them. It seems to me that this is the essence of what Federalist 78 was talking about, about the difference between will and judgment.
Hamilton explained that if ever the judiciary started exercising will instead of judgment, it would upend the entire constitutional order. That, we cannot have. That is not how it should be.
Next, my colleague from Maine went on to explain that Judge Kavanaugh's association with the Federalist Society was somehow a problem, that the Federalist Society is somehow some sort of demonic conspiracy to overthrow the U.S. Government--or something to that effect. I embellished slightly his characterization of it, but you would think from what some of my colleagues say about the Federalist Society that there is something terribly wrong with it. Let me tell you about the Federalist Society.
I have been aware of the Federalist Society for most of my life. I attended my first Federalist Society event while I was still in high school. I mean, what teenager doesn't want to attend a Federalist Society event at a nearby law school? That was something we considered to be a lot of fun in Provo, UT.
At every Federalist Society event that I have ever attended, starting when I was in high school, all the way through college, through law school, throughout my career as an attorney, and since then in my career in politics, one thing has been consistent: The Federalist Society, when it puts on an event, allows for all sides to be represented. You will see views that are widely divergent. You have people, such as Nadine Strossen, former president of the American Civil Liberties Union, who have long been affiliated with the Federalist Society and participated in their symposium. This, you see, makes the Federalist Society rather unlike most American law school experiences, wherein one side is presented--not both. The Federalist Society prides itself in focusing on open, robust, honest debate.
So if some people want to criticize the Federalist Society or those who, heaven forbid, have ever attended a Federalist Society event, what they are doing is criticizing academic freedom, criticizing a robust discussion of law and public policy. We should all be grateful for the Federalist Society for Law and Public Policy Studies. This is an enterprise that really represents the core of what the American people should value--certainly what those who study and admire and respect the law should value. This is not something people should be criticized for participating in. Last I checked academic freedom and robust discussion of what the law says and which branch of government ought to exercise will and which ought to exercise judgment--that is something to be rewarded. That is part of America's bedrock. Its core institutions of civil society are people who are willing to come together, not under the auspices of government, not under the control of some bureau or bureaucracy, but rather on their own to discuss and debate things that will inure ultimately to the benefit of the people.
Next, my colleague from Maine, Senator King, referred to Judge Kavanaugh's refusal to agree anticipatorily to a recusal in certain cases. As Judge Kavanaugh very capably explained in his hearing, this is not the kind of judgment a person makes before taking the Bench, before assuming a particular judicial office to which he or she has been nominated. It wouldn't be appropriate for him to anticipatorily agree to recuse himself in a type of case that he has even yet to see.
I am not sure why some of my colleagues wanted to put him on the record as taking himself off of a certain broad category of cases, but that, nonetheless, seems to be what they were after. That, in most circumstances, is improper, just as it would be improper to get Judge Kavanaugh to agree in advance of his confirmation as to how he would vote in a particular type of case.
This, too, many of my colleagues find troubling, by the way; yet this, too, is part of the canons of judicial ethics. We don't want people campaigning as if on political issues to get onto the Supreme Court of the United States. We will get back to that a little bit more later.
Next, Senator King referred to the supposed lack of documentation from the Bush administration where Judge Kavanaugh worked--the lack of documentation, meaning the lack of documents coming out of the White House. It is important to know that Judge Kavanaugh doesn't own the documents in question. No, those are owned by the Bush administration. They own the privilege, and under the Presidential Records Act, which Congress itself has enacted, there are terms set. There are agents identified, agents who get to assert certain privileges and decide when, whether, and to what extent certain documents will be released and available for our review. I am not sure what it is that they are so terrified might be out there, but whatever it is, it is in a document that doesn't belong to us, a document to which we have no access, to which we have no rightful claim, but a document that in all events is not Judge Kavanaugh's call. It is not his call to decide what happens to those documents--when, whether, under what circumstances we receive them. It is not his fault. It is not under his control. He has no say on that. Do not hold that on his head. That is not his burden.
Then my colleague from Maine went on to address Judge Kavanaugh's demeanor. Senator King is not a member of the Judiciary Committee. I am. Senator King acknowledged to have viewed some of the hearings from a television while in other parts of the Capitol Complex, sometimes with the volume on, sometimes with it off. He said something to the effect that if he were watching from another planet, he would conclude that this man is not fit for office. Maybe he wasn't watching the same hearing I was, but I know one thing: Senator King wasn't in that room; I was. Let me tell you what I saw.
I saw a man who has devoted most of his adult professional career to public service; a man who volunteers his time to feed the hungry, the homeless; who coaches his girls' basketball team, which he has done for a very long time; who teaches; and who supervises those whom he employs.
His law clerks over the last 12 years--by the way, men and women of every background in the United States--rave about him, call him the kind of boss that every American would want to have, that every young lawyer would dream of working for, for the simple opportunity of learning under his tutelage, for the opportunity of serving in a judicial apprenticeship of sorts under a true master of the law.
I don't know what Senator King was referring to, but he wasn't in that same hearing I was. He certainly didn't see the same thing I saw, which is someone who was seeking sincerely to defend his own record of public service and his own private conduct against great adversity, moreover, in circumstances in which he and his family have been dragged through the mud by no choice of their own.
As to the suggestion that he was somehow leveling a threat when he uttered the words ``what goes around comes around,'' I was in that room. I understood that to mean one thing and one thing only, which is to say that when we mess with the process, that process might well remain messed up. That is all he meant. He was not making any threat. That was apparent to anyone watching that meeting with anything approaching an open mind. Anyone watching that with an open mind would have understood what that meant in context. He was simply stating the obvious: When we allow politics to come into play excessively in the process of naming and confirming people to the Supreme Court of the United States, it messes it up. It messes it up now and messes it up for the future. We should all be concerned about that.
I also heard comments from my colleague, the distinguished junior Senator from Illinois. She said, among other things, that the investigation conducted into allegations involving Judge Kavanaugh were ``a sham.'' A sham. Think about what that means. It means that she is suggesting that those investigating didn't want to get to the truth.
I don't know what documents she has reviewed, but I can tell you the documents that I have reviewed. Those compiled by the Federal Bureau of Investigation and those compiled by the very faithful investigative staff on the Senate Judiciary Committee were thorough. We are talking about hundreds of pages of transcripts, to say nothing of the more than 30 hours of testimony provided by Judge Kavanaugh himself before the Senate Judiciary Committee. We have been thorough in what we have gone through, and to call this a sham is simply disingenuous. It is inaccurate. It is inconsistent with anything I have seen.
I heard my colleague from Illinois also refer to what she characterized as untrue statements made by Judge Kavanaugh in connection with Judge Kavanaugh's alleged participation in the development of the so-called torture policies in the Bush administration
As has been stated over and over again by Judge Kavanaugh and those who worked with him, he wasn't even cleared, didn't even have access to that program, was not involved in that program's creation. The documents to which they refer in claiming otherwise show only that he was asked about certain arguments that may be presented in court, which is completely different from the question they are talking about--whether he had anything to do with the development, the design, the creation of that program, which he did not. So to say that he lied about that is completely dishonest, it is not borne out by the facts, and I find it shameful that this accusation would be made. It is completely contrary to the evidence.
Next, my colleague from Illinois referred to concerns about what she referred to as healthcare outcomes--outcomes in particular cases involving healthcare. She went on to extol the virtues of the Patient Protection and Affordable Care Act, also known as ObamaCare, and spoke at length as if to suggest that Judge Kavanaugh was being considered not for a judicial position but a position involving lawmaking, policy-setting. He has, after all, been nominated to a position of Associate Justice of the Supreme Court, not policymaker. His exercise of judgment, of interpreting the law based on what it says rather than on the basis of what he wishes it said, is his role. It is unfair to compare him to another standard.
Moreover, if we are going to compare him to that standard, she has to acknowledge that when we are talking about the Affordable Care Act, he actually wrote an opinion upholding it. That is beside the point here, but if she is questioning his judgment and his ability to handle the law and apply the law on the basis of how he views the law and to do so objectively, she ought not to be concerned
If she is concerned about the outcome of cases relating to the Affordable Care Act--which I don't think she should be--as separate and apart from the judgment part of his role, then she ought to be consoled by the ruling that he made upholding the Patient Protection and Affordable Care Act.
In any event, it is simply not fair to compare him to this standard and to say that because they fear--because my colleagues fear that he might reach a different policy outcome than she might prefer, she is attributing to him political views that he doesn't have, that he isn't allowed to have as a jurist, and that he has not expressed
If you can point to any one of his 300 written published opinions in the Federal reports, bring them to me--any one of those that suggest that he is incapable of being impartial in healthcare or in any other arena, please bring them to me. I would love to see them. Yet they can't, they won't, and they haven't, because such opinions do not exist. That is why they resorted to other things. That is why they are talking about policy. That is why they are trying to smear this man's character and destroy his good name, because they have looked through those opinions, and they can't find a dud among them.
My colleague, the distinguished Senator from New Hampshire, also spoke. She regretted the fact that, in her view, there hadn't been a full investigation into the allegations against Judge Kavanaugh and suggested that additional evidence would have been helpful and that additional evidence exists corroborating the allegations made against him.
Well, having reviewed hundreds and hundreds of pages of transcripts of interviews resulting from the FBI investigation and from our competent Judiciary Committee staff, I don't know what she is talking about because the only potential corroborators in this case--that is, the alleged eyewitnesses to the accusations in question--those allegedly present in the circumstances in question, say that they can't remember any instance in which anything like this happened--not just the underlying bad acts themselves as alleged but the events in which they allegedly occurred. That is what we call corroboration. You cannot have a statement you describe as corroborating unless there is someone who at the time saw or heard or was otherwise made aware of something at or around the time it occurred. That is what corroborating evidence is, and that is what is noticeably absent in this case.
She also claimed that the FBI was not allowed to conduct a serious investigation. I do not know what she means. What I do know is that what the FBI was asked to do involved conducting a supplemental investigation into current credible allegations of sexual misconduct, and that is what they did. We, the Senate Judiciary Committee, didn't put guardrails around that, didn't tell them they couldn't follow up on leads they deemed significant, didn't tell them they couldn't look past a certain witness, didn't tell them they couldn't follow up on something that might shed light on this candidate's credibility or his eligibility to serve in judicial office.
That leads to another point. This man has now endured 7 FBI background investigations, with over 150 people interviewed during that time--150 people interviewed extensively about what they know about him and about what they know about his character. Those interviews and the report that was produced back up this man's character. And separate and apart from the fact that there is no corroborating evidence for these allegations, these independently backed him up.
My colleague from New Hampshire, like my colleague from Illinois, also brought up the Affordable Care Act, as if assuming from the outset that, on the basis of policy, JudgeKavanaugh would rule a certain way in this or that aspect of anything having to do with healthcare. Here again, we have characterizations that would be much more fitting in a political debate for a political office, but, alas, that is not what we have here.
My colleague from New Hampshire referred to the Mueller investigation. I don't know how that is tied to the nomination of Brett Kavanaugh to be an Associate Justice of the Supreme Court of the United States, but somehow she tried to make that an issue. I don't know what she is talking about. I don't know how that could possibly be relevant here.
She made the argument--the very serious accusation--that Judge Kavanaugh somehow believes that the President of the United States is above the law. I challenge my colleague from New Hampshire to tell me what evidence she has that he believes that. This is a serious accusation and one that should not be made lightly.
I have never ever heard of Judge Kavanaugh having said or written anything suggesting that the President of the United States is above the law. Yes, Judge Kavanaugh acknowledged, as he has repeatedly on a number of occasions in a number of settings, that there is a dispute among scholars as to the timing and manner of liability that might be faced by a current sitting President of the United States, but he has never said the President of the United States is above the law--never--never hinted at it, never concluded that, and it is, therefore, unfair to attribute that view to him.
Finally, my colleague from New Hampshire characterized Judge Kavanaugh as being someone who is without character and sort of the antithesis of being an impartial arbiter.
I think the very best way we can view that with regard to his character is through his life of public service, through the way he has interacted with those he knows, those who have truly known him not just over the last 36 years but for his entire lifetime.
The best we can evaluate his ability to be an impartial arbiter is to review the 300 published opinions he has written while serving as a judge on the U.S. Court of Appeals for the DC Circuit. I challenge any one of my colleagues to bring me any one of those opinions or any combination of those opinions that show that he is incapable of being impartial or that he is in any way challenged as to impartiality. They can't do it. They won't do it. They haven't done it because such opinions don't exist.
Judge Kavanaugh is a good man. He is eminently qualified to serve on the Supreme Court of the United States. I endorse President Trump's nomination of him. I was pleased to vote in favor of cloture, and I look forward to voting for his confirmation in the coming hours.
Thank you, Mr. President.
I yield the floor.
Oct 5, 2018
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.
Sep 18, 2018
I am a Republican because I am a conservative. And I am a conservative because I believe the Constitution and the ideals it asserts in behalf of all Americans are worth protecting. Even when they are untimely. Even when they are unpopular. And especially, for the vulnerable, the marginalized, the forgotten among us.
Equal rights. Equal opportunity. Equal justice under law. Equal dignity under God.
We fail as Americans when we violate these ideals. When we exclude some number of our neighbors from their God-given share of our common inheritance.
When we declare, in the interests of expedience and in defiance of our national creed, that some people are less equal than others.
Such was the cruelty our nation - through our laws – long visited on African Americans, American Indians, immigrants and ethnic minorities; women; religious minorities like my own forebears in the Church of Jesus Christ of Latter Day Saints; the disabled.
Happily, this is no longer the case. All of these groups – who taken together comprise the vast majority of all Americans – were at different times in our history affirmatively brought under the protection of the laws.
This work of inclusion, of expanding the circle of legal and constitutional protection, was not a natural, evolutionary process.
It was the work of vigilant lawmakers advancing the cause of justice at every opportunity, against the entrenched forces of the political status quo.
Republicans in this Congress have undertaken such efforts on behalf of certain priorities: in particular the tax relief and spending increases that are poised to yield a budget deficit of nearly $1 trillion this year.
But no such legislative progress has been achieved advancing the right to life nor the plight of those denied it.
For the second straight year of unified Republican governance – unified pro-life governance – Congress’s annual spending bills will include no new reforms protecting unborn children, or getting federal taxpayers out of the abortion business.
The House version of this Health-and-Human-Services spending bill included multiple reforms:
It denied taxpayer funds to the largest abortion provider in the country, Planned Parenthood;
It eliminated Title X family planning grants, which cross-subsidize abortion providers;
It prohibited federal funding of research on aborted fetal tissue;
It included the Conscience Protection Act protecting pro-life people and groups from funding discrimination.
None of these modest, common-sense spending reforms survived the House-Senate negotiations.
None was made a priority by the people empowered to set the priorities. The authors of this bill defend their 1.3 trillion dollar compromise.
And of course, this being Washington, I know it could always be worse.
But Mr. President, before this bill passes with overwhelming bipartisan support, despite being mostly unread by its supporters, someone ought to speak up for the Americans this legislation leaves behind.
The best measure of any government – of any policy or proposal – is its impact on “the least among us.”
Too often today, Washington acts as though “the least among us” refers to our most vulnerable incumbents rather than our most vulnerable constituents.
This $1.3 trillion spending bill exemplifies that confusion and fails that test. Under this bill, neither the unborn nor taxpayers are any more protected from the abortion industry than they were under President Obama and a unified Democratic Congress.
I understand that fighting on contentious issues comes with a cost. But so does not fighting on them, especially in the rare moments when we could win.
This bill is an opportunity missed – and missed at a time when we can’t be sure how many more we will be given going forward.
Some causes are worth fighting for, even in defeat - the God-given, equal rights and dignity of all human beings paramount among them.
The arc of history may, as I hope, bend toward life. But only if we bend it, Mr. President. I must oppose this legislation, but neither in anger nor sadness.
Rather, in hope, looking forward to another bill, another time – one that stands up for those Americans who ask nothing more than the chance to one day stand up for themselves.
As prepared for delivery