Nomination of Brett Kavanaugh to the Supreme Court
As a United States Senator and a member of the Judiciary Committee, giving careful consideration to Supreme Court nominations is among my most important responsibilities. These lifetime appointments can change not only the course of the nation, but the course of lives.
I began with deep concerns about Judge Kavanaugh: his unfettered view of executive power?—?effectively believing the President is beyond the law; his refusal to commit to well-established precedents on critical issues, like women’s constitutional rights regarding abortion; his affinity for unlimited and dark political money and his studious blindness to its harms to our democracy; his very selection and support by big special interest groups.
And I had significant concerns about his truthfulness and temperament, concerns proven more than justified over the course of these hearings.
Another warning sign was flashing: Senate Republicans were stopping at nothing to get this nominee through. Why? Behind all the shattered norms and traditions of the Senate, behind all the hidden documents and unanswered questions, stands the looming question: Why?
In my opening comments I chronicled a pattern under Chief Justice Roberts, an unpleasant pattern of 5–4 partisan rulings for the big corporate and special interests that are the lifeblood of the Republican Party; not three or four times, not even a dozen or two dozen times, but 73 times. All 5–4 partisan decisions. All wins for the big corporate and special interests that are the lifeblood of the Republican Party. Seventy-three times.
The pattern is clear in these 5–4 partisan decisions: every time big corporate and Republican special interests are involved, the big interest wins. Every. Time. Seventy-three times.
On its way to delivering these Republican special interest victories, the Roberts Five leaves a trail: of wrecked precedents; sketchy, non-factual fact-finding; longstanding statutes ignored or rewritten; and supposedly conservative judicial principles like modesty, deference, originalism, and stare decisis, all violated.
The pattern of these 73 partisan Roberts Five decisions explains why big Republican interests want Kavanaugh on the Court so badly, and why Republicans shredded so much Senate precedent to shove him through. The big Republican interests want to be able to pull 5–4 wins out of the Supreme Court as if it were a legislature they controlled.
What are the areas of law where the big Republican corporate and special interests have a stake, where the Roberts Five delivered for the Republican Party?
First, they helped Republicans gerrymander elections: Vieth v. Jubelirer, 5–4. This was a big deal. It let Republicans gerrymander their way to control of Congress by thirty seats in a year Republicans lost by a million total votes.
The Roberts Five has helped Republicans keep minority voters away from the polls: Shelby County, 5–4, Bartlett v. Strickland, 5–4, and Abbott v. Perez, 5–4. Making it harder to vote, harder for minorities and poor people and the elderly, is a Republican electioneering tactic; and Republican state legislatures went right to work passing voter suppression laws after these partisan decisions.
The Roberts Five helped unleash big-money political influence, giving big interests unlimited power to buy elections and threaten and bully Congress: McCutcheon and Bullock and the infamous, grotesque 5–4 Citizens United decision were their tools. This is the sockdolager, the really big deal, by the way. There is a very small world of very big interests who have unlimited money to spend and a business strategy to spend it to influence politics. These few, but big, Republican interests were given unprecedented political artillery by the Roberts Five, and our politics has been contorted and corrupted ever since. But those big influencers are, oh, so happy!
What else do the big influencers want?
To get out of courtrooms. Big special interests, that can muscle their way around Congress and capture executive agencies, hate courtrooms. There’s this annoying thing in courtrooms of being treated equally with regular people. There’s this annoying thing in courtrooms about having to turn over your actual documents. There’s this really annoying thing in courtrooms about having to tell the truth. And bingo: The Roberts Five protects corporations from group “class action” lawsuits: Walmart v. Dukes, 5–4; Comcast, 5–4; and Epic Systems, 5–4?—?and steers customers and workers away from courtrooms and into corporate-friendly mandatory arbitration: Concepcion, Italian Colors, and Rent-a-Center, all Roberts Five.
What else? To bust unions, a perennial big-business, special-interest classic, kind of a golden oldie for big Republican influencers: Harris v. Quinn, 5–4; and Janus v. AFSCME, 5–4.
And of course, to protect corporate polluters. Big polluters pour big money into the Republican Party. They do this to protect your freedom. They talk a lot about freedom. Turns out, it’s your freedom to breathe dirty air, drink dirty war, smell the river that flows by, eat chemicals in your food, and have climate havoc and acid oceans. It’s all about freedom, indeed. The freedom to pollute for free and get away with it. And there are the Roberts Five, over and over for the polluters; even stopping the nation’s Clean Power Plan, 5–4, for the coal industry.
The list goes on. It totals 73 partisan 5–4 cases under Roberts, each giving big wins to big interests.
It is an indelible pattern.
No wonder the American people feel the Court is rigged. The Court is flying all the warning flags of a captured agency, dancing to special interest tunes and rampaging through precedent and principle to get there. This pattern is a disaster for the Court, and I know Kavanaugh will contribute to that disaster.
How do I know this? I know this, because Kavanaugh’s record tells me. That’s why he’s the nominee, after all. He’s been signaling the big influencers, with over 50 speeches to the Federalist Society, and he’s been signaling with his record.
As a judge on the D.C. Circuit Court of Appeals, in the most controversial and salient civil cases?—?those decided by bare 2–1 majorities?—?when Kavanaugh was in the majority with another Republican-appointed judge, he voted to advance far-right and corporate interests a striking 91 percent of the time. Ninety-one percent. Remember that number. Kavanaugh reliably voted for polluters and for dark money and for corporate interests, with a healthy dollop of anti-choice, pro-gun, religious-right politics thrown in. Ninety-one percent is how he campaigned for this job.
Big special interests turn up regularly in appellate courtrooms, like the D.C. Circuit. Their tool of influence is one of the worst-policed tools of special-interest influence in America: the so-called “amicus” brief, where the big special interests fund front groups to file these amicus briefs to instruct courts how they want the court to rule. They’re called “amicus” briefs because you’re supposedly appearing as a “friend of the court.” But this has nothing to do with friendship. It’s a scandal of secrecy, deception, and manipulation.
How does this involve Kavanaugh? In cases where conservative front groups weighed in with these amicus briefs, Judge Kavanaugh sided with them?—?wait for it, 91 percent of the time. Again 91 percent! Call him Judge Ninety-One Percent, and you understand why those big interests want him so badly on the Supreme Court, and why the Republican Party drove like drunk kids over the curbs and across the lawns smashing mailboxes of procedure and propriety to get him there.
The overlap between the groups in Kavanaugh’s 91 percent club, and the groups who fund Leonard Leo, the Federalist Society architect of Kavanaugh’s nomination, is telling. The multi-million-dollar scorched-earth ad campaign by groups like the Judicial Crisis Network is funded by big dark-money interests. The NRA poured its own millions into campaigning for Kavanaugh. They promised NRA members that Kavanaugh will “break the tie.” They are 91 percent sure.
In the face of all of this, Kavanaugh has feigned impartiality. But then came the “tell.” When Kavanaugh returned to the Judiciary Committee to defend himself against accusations of a sex assault, the veneer of impartiality was pulled away, and we saw the fierce and rabid, conspiracy-mongering, partisan within. He even blamed Bill and Hillary Clinton. Seriously.
It shows where we are in this country that this display was not by itself disqualifying. But for the big special interests behind Judge Ninety-One Percent , this was not at all disqualifying. It was great! It just confirmed what they knew: Judge Ninety-One Percent would be their boy, and the Roberts Five could get back in the saddle, and give them 73 more 5–4 partisan victories.
But that moment gave the rest of the country the opportunity to take true measure of a man who claims he is impartial; a man who asks the United States Senate to grant him a lifetime seat to sit in judgment of others, and claims he will judge fairly.
One longtime observer of the judiciary, and an early supporter of Kavanaugh, recently withdrew his support. He wrote in The Atlantic:
I cannot condone the partisanship?—?which was raw, undisguised, naked, and conspiratorial?—?from someone who asks for public faith as a dispassionate and impartial judicial actor. His performance was wholly inconsistent with the conduct we should expect from a member of the judiciary.
Extraordinarily, even former Supreme Court Justice Stevens has warned against Kavanaugh, for the same reasons.
Kavanaugh’s “raw, undisguised, naked, and conspiratorial” partisan screed may have excited the donors, but it did nothing to address the concerns that had prompted the hearing in the first place. So in addition to an epic fail of any reasonable test of impartiality, Judge Kavanaugh still bears credible allegations of sexual assault levied against him.
I confess, I believe Dr. Blasey Ford.
We have a big dispute here, but I do hope we agree on one thing. If Dr. Blasey Ford’s testimony is true, I hope we can all agree that Kavanaugh has no business on the court.
Well, I believed her then and I believe her now. And I did not find him credible?—?at all. He was belligerent and aggressive, just as his Yale drinking buddy said he was when drunk in college, and evasive and non-responsive.
Dr. Ford’s allegations were credible enough to get her here before the Senate. Her testimony here was quiet, open, and powerful. She was calm, composed, and utterly believable. Even President Trump called her testimony “credible,” and “compelling.” So did many of my Republican colleagues.
But then came the smear campaign to discredit and demean her, led by the president’s sickening taunts and mockery in Mississippi. Then came the Majority Leader’s criticisms. He knew it wouldn’t do to say she lied; but his every accusation fell to pieces if she was telling the truth. His attacks were a relentless, indirect, bank-shot smear of her credibility.
One element of the smear of Dr. Blasey Ford is to describe her testimony as “uncorroborated,” as the Majority Leader just did again today. First, that isn’t true. Prior consistent statements are a well-known form of corroboration, and Dr. Ford’s prior consistent statements are abundant. Second, everything possible has been done by Republicans to prevent corroborating evidence from coming forward.
Which brings us to the, to put it politely, abridged FBI investigation. First, the FBI background investigation was closed to this new evidence, in an unprecedented break from the entire history of background investigations. Then the investigation was limited by secret orders from the White House we still have not seen.
What do we see? We see the dozens of credible percipient and corroborating witnesses who came forward to say they couldn’t get an interview from the FBI, who were never contacted when they made themselves known to the FBI, and who were fobbed off into a black hole of a tipline?—?a tipline from which no tips appear ever to have been pursued, a tipline that was a dumping ground for unwelcome evidence. As United States Attorney, had I received the set of witness summaries we saw, I would have sent the packet back for more investigation.
A sincere and thorough investigation designed to get at the truth would have broadly interviewed Kavanaugh and Blasey Ford’s known contemporaries to probe their recollections.
An investigation designed to get at the truth would have interviewed the witnesses who corroborated Dr. Blasey Ford’s prior consistent statements.
An investigation designed to get at the truth would have tested Kavanaugh’s calendar and yearbook entries with contemporaneous witnesses.
An investigation designed to get at the truth would have done interviews of witnesses who corroborate the incident alleged by Ms. Ramirez, like the classmate “one-hundred-per-cent sure” he was told at the time that Kavanaugh exposed himself to Ramirez.
An investigation designed to get at the truth would have interviewed people who recalled Kavanaugh’s propensity to drink to excess and his behavior when drunk relevant to these incidents.
An investigation designed to get at the truth would have certainly sought to interview the alleged victims, like Christine Blasey Ford, and the accused perpetrator, Judge Kavanaugh.
From public reporting, we know that none of this happened. It is difficult to escape the conclusion that, like everything else in this nomination, this investigation was designed not to get at the truth, but to step around it.
I am a huge fan of the FBI, and it must have killed the agents to do such a half-baked and incomplete job because of marching orders from the White House. My heart goes out to the experienced FBI professionals hamstrung by the Trump White House through this investigation. They know better than anyone the holes in what they did. But in this matter, they don’t have the independence of a criminal investigation. The White House is the client. They must do what they are told. This was yet another Trump abuse of a proud institution.
So here we are.
A defendant in a criminal prosecution enjoys a presumption of innocence until proven guilty. A defendant in a civil trial must be found culpable by a preponderance of the evidence. An executive agency must make decisions based on substantial evidence. The question before us is none of those.
The question before us is whether Brett Kavanaugh is a man with the character, credibility, impartiality and temperament to sit in judgment on America’s highest court.
We now know Brett Kavanaugh is not that. He is not close. And Americans know it. But the big Republican interest groups don’t care because they see that 91 percent and yearn for 73 more 5–4 partisan victories.
Service to the law has at its heart an earnest pursuit of the truth. In Kavanaugh’s pursuit of office, truth has too often been not his goal but his casualty. The history of falsehoods is well chronicled: denying that he worked on the nomination of the controversial Judge Pryor; denying that he knew of documents stolen from Judiciary Committee Democrats when he was at the Bush White House; denying that he was involved in questions about the secret detention program, or the controversial warrantless wiretapping program; denying what he himself said about presidential immunity from investigation; complicit in the cover-up of millions of documents we should have seen; and on and on.
Once Dr. Blasey Ford and then Ms. Ramirez came forward with sexual assault allegations, the lies came fast and furiously: that he knew nothing about the Ramirez allegations until “the New Yorker story” was published; that he had no alcohol problem and had never drunk to the point of impairment of his memory; that he had unique definitions of phrases in common parlance related to binge drinking and sex; that he “always treated women with dignity and respect,” and that claiming himself as a girl’s “Alumnius” was a sign of “affection.” As the woman herself retorted, “There is nothing affectionate or respectful in bragging about making sexual conquests that never happened.”
On they came, little lies and big lies: about not having connections to get into Yale; about honoring grand jury secrecy while helping the Ken Starr investigation; none perhaps individually fatal but together adding up to a pattern of dissembling and prevarication. Even before Kavanaugh was nominated, Leader McConnell had smelled trouble, and urged the president not to nominate someone he knew was a badly flawed nominee with a lengthy paper trail that would likely disclose how extreme and partisan Judge Kavanaugh truly is.
So much has been left by the wayside in the mad rush to jam this nomination through. Documents. Facts. Senate rules and traditions. Real investigation. Respect for truth. All smashed up in the wake of this nomination.
But as John Adams said, “Facts are stubborn things.” The truth has a way of coming out. The millions of hidden pages of Kavanaugh’s White House records will come out. The non-assertion assertion of executive privilege will fall or yield to time. The unheard witnesses will ultimately be heard, and others may emerge.
Which brings me back to that question: Why?
The answer is in the numbers: 5–4; 73; and 91 percent.
At the end of the day, we go back to a Supreme Court far too often dancing to the tune of a handful of big Republican special interests. The record of this is undeniable, and as I said, it will be a disaster for the court, and Kavanaugh will contribute to that disaster.
This has been a dark episode for the United States Senate, for the Supreme Court, and for our democracy. But there is one bright jewel that has appeared in the midst of all the filth and wreckage and lies. Something very special is happening out there. The testimony of Dr. Christine Blasey Ford of her assault at the hands of Brett Kavanaugh, though studiously ignored by so many Republicans, and mocked by the president, has lit a fire.
In my small state of Rhode Island, at least ten women have written me to share their own personal stories of survival of sexual assault. I get mail every day about the various policies being debated here in the Senate. But I have never had mail like this. These women have come forward, from widely different ages and backgrounds, college students and grandmothers, to tell their stories. Some had held their secrets close, for years, even for decades. Several women gave me permission to share their words, words they have allowed me to free after years of silence. What a privilege it is, what an honor for me, to be trusted in this way by these remarkable women.
Some were moved to tell their stories because they see their own fears reflected in Dr. Blasey Ford’s brave testimony: the fear of not being believed; the fear of losing the respect of family and friends. But they knew that Dr. Blasey Ford’s memories were real, and they wanted me to trust that Dr. Blasey Ford’s memories were real, because their own memories of their assault are seared into their minds. One told me, “I am Dr. Ford.”
A woman wrote to me, “I’m sure my rapist hasn’t thought of me since that night 21 years ago either. In fact, he like Kavanaugh would likely deny anything had ever happened. But here’s the thing about rape?—?the victims never forget.”
The coverage of Dr. Blasey Ford’s appearance before the Senate stirred deep and disquieting emotions. As one woman wrote:
The past few weeks have been doubly difficult with Dr. Ford coming forward and all of the constant news threads and social media threads. I have been triggered with nightmares, fear of being alone, and emotionally wrecked. PTSD and triggers are real. No matter how much therapy and time goes by, one small statement or physical interaction can trigger someone who has experienced a traumatic assault.
One letter read:
As a rape survivor (I was nineteen years old?—?I am now 66 years old), I want you to know that that experience does color the rest of a person’s life, informing decisions that you make, where and how you go somewhere, how you raise your children and relate to your husband and all other people. Sometimes through the decades, you think about it consciously and on purpose, and sometimes outside events can bring it back without your willing it to be so.
Dr. Blasey Ford’s quietly compelling testimony has forced our nation to face up to tough questions about how women have been treated. The redemption, if there is one, for this foul nomination process is to grasp the power of this moment. This is about far more than a troubled and troubling nominee. Something big is happening. Women across the country, like these extraordinary women in Rhode Island, are reconciling with their truth, fighting through a long and unfair legacy of shame, fear, and stigma, and determining to leave a different world for their daughters and granddaughters.
It is a true personal honor to share this moment with them, to be trusted with their stories, to have the chance to help end that legacy, and to support them toward that new and better world.
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