September 20, 2021

The Scheme Speech 7: Brett Kavanaugh

Mr. WHITEHOUSE. Madam President, I return to the Senate floor to again discuss the scheme to capture our Supreme Court; in this case, it will be through the lens of how recent Justices got on the Court. And I will choose Brett Kavanaugh.

I think we all remember the famous list—the Federalist Society list—that Donald Trump promised to follow in Supreme Court appointments. The first interesting thing about Brett Kavanaugh is that he was not on the list of candidates that Donald Trump had offered up—this list that bought peace between house of Trump and house of Koch. Trump had promised he would appoint off that scheme-approved Federalist Society list. He didn’t, and yet no one complained. That is a telltale right there.

There was no complaining because Brett Kavanaugh knew this terrain. He knew the central operative at the heart of this scheme, Leonard Leo. He had worked on judicial nominations in the Bush White House with Leonard Leo, who coordinated big donors’ support for judicial nominees.

I have described before a judge who bemoaned to me what he called his colleagues auditioning—auditioning for higher office, auditioning for the Supreme Court. ‘‘Auditioning’’ was a telltale word that stuck with me. You don’t audition without someone to audition to. Well, Kavanaugh knew the guy at the center of the scheme, and he knew that the donor turnstile to the Supreme Court was run out of the Federalist Society.

So Kavanaugh not only auditioned with Leo; he auditioned at the Federalist Society.And no one auditioned harder than Brett Kavanaugh. As a circuit judge, he campaigned through 27 Federalist Society events. I think he set the record for auditioning at Federalist Society events. He knew who, and he knew where. And he also knew what the big donors wanted. So he made sure his circuit-court opinions signaled his chops.

On abortion, Garza v. Hargan, OK to force a teenager to wait indefinitely for an abortion as the clock ran; check.

On guns, Heller v. District of Columbia, a dissent in the follow-up case to the Supreme Court Heller decision—in his case, one even more extreme than Scalia; check.

For polluters, PHH v. CFPB, waving the Federalist Society’s unitary executive banner, even saying that regulatory agencies are a significant threat—I am quoting him here, regulatory agencies, the things that protect us from pollution and cheaters, are a ‘‘significant threat to individual liberty,’’ if you are a polluter; check.

And most important to this dark money scheme, EMILY’s List v. FEC, where he said the front groups ‘‘are constitutionally entitled to raise and spend unlimited money in support of candidates for elected office’’ because it is ‘‘implausible that contributions to independent expenditure political committees are corrupting.’’ Yeah, how could that possibly be corrupting? Check.

So this is behavior. In nature, when you see behavior, you can draw conclusions. When you see, for instance, a vulture wheeling, you can expect something dead below. It is not always true; the vulture may just be wheeling in an updraft eddy. But when you get a number of vultures wheeling, it is pretty reliable that there is something dead below. And when so many judges start auditioning for advancement that their behavior acquires a name from other judges, you can be pretty sure there is an audience for their auditioning.

And Kavanaugh knew that audience. His relationship with Leonard Leo, his hustling of Federalist Society events, his insider knowledge of the Republican selection process and the big donors, and his ardent display of his wares in all the ways big donors would want, was a winning combination.

So Leonard Leo hand-walked him around the Trump Federalist Society list and straight to the top of the judicial selection pile, and no one with a hand in the Trump-Koch deal that spawned the Federalist Society list voiced an objection.

Kavanaugh had auditioned his way around the list, and the scheme could not have been happier with the outcome. All of that behavior is telling. There is a scheme, and Kavanaugh knew how to play it.

Now that the scheme had its man, they would fight for him. They did not know how hard the fight would be, until Dr. Christine Blasey Ford came forward with a tale of youthful sexual assault by Kavanaugh and a drunken buddy.

But even before that, there were telltales of the pressure to get Kavanaugh onto the Court. Thousands of pages of records from his White House days were withheld; blank pages stamped ‘‘Constitutional Privilege’’ were presented to us on the committee. They couldn’t even bring themselves to call it ‘‘executive privilege,’’ the claim was so far-fetched. ‘‘Constitutional Privilege’’ was an invented phrase, but they knew no Republican would object. The pressure was on. The play had been signaled. The money behind the scheme was the money behind the Republican Party, so Democrats could complain, but the Republican wall would hold. All our objections and requests would be overruled.

Another example of signaling from nature, you can tell a lot about the wind by looking at the water, as sailors know. You don’t have to feel it; you can understand the wind by looking at the water. Little wavelets show where gusts of wind can be found on a still day. The water darkens where there are stronger puffs on windy days. As the wind grows, the waves grow bigger, and then whitecaps form. And as the wind strengthens more, wind lines appear—Langmuir circulation, the scientists call it—aligned with the wind’s direction. And in a full gale, spindrift, foam from the tops of the waves—spindrift blows off the wave tops.

In the same way that you can tell a lot about the pressure of the wind by looking at the behavior of the water, you can tell a lot about the pressure of the scheme by looking at the behavior of the Republicans—particularly in the gale-force controversy over Dr. Blasey Ford’s testimony. By all rights, in any normal world, Kavanaugh would have been withdrawn. The fact that he wasn’t is a telling signal of pressures afoot.

Allegations of sexual violence motivate domestic violence and victims groups, groups which Senators do not ordinarily choose to cross.

Is one judge worth that? Why not just pick another?

Yet they went forward—another telling signal of the pressure.

Senators usually prize their chance to question Supreme Court nominees, yet Republicans gave that up to a female prosecutor sent to disarm Dr. Blasey Ford’s testimony—yet another signal.

Of course that didn’t work. The witness’s testimony was clear and credible. The female prosecutor was sent packing. Republican Senators were left in the touchy position of having to disbelieve Dr. Blasey Ford without any basis for disbelieving her.

Yet only one Republican Senator buckled—another signal. Senator Flake demanded some investigation, and here, the gale force pressure kicked in. This could not go on. Kavanaugh was too great a prize. The FBI was pressured to do a fake investigation. That is a fire alarm of a signal.

We saw many signs of things awry. For a while, early on, the FBI became impervious to information. To put it mildly, that is not the FBI’s customary disposition. An FBI that suddenly becomes impervious to information is quite a signal. The FBI was told which few witnesses could be interviewed. The interviews were cursory and terse.

Other witnesses who came forward were ignored or turned away. Even when Dr. Blasey Ford and other witnesses were trolled by the ‘‘flying monkeys’’ of the far right so venomously that Dr. Blasey Ford had to stop teaching, had to leave her home, had to hide herself under the protection of a security detail, witnesses still tried to come forward. So ultimately, under pressure, the FBI announced a tip line for witnesses to contact, but the tip line was a fake.

The FBI has procedures for things, and it has tip line procedures. The FBI did not follow its tip line procedures. It appears the FBI did not follow up on any of the tips that came in on the Kavanaugh tip line. Instead, the FBI routed the Kavanaugh-related tips to the White House Counsel’s Office for a decent burial.

We on the committee were ultimately allowed, in a classified setting—classified setting—2 hours of what you could call speed dating with documents to look through pile after pile of documents—no notes allowed, no photos allowed, no copies allowed. One of those piles, though, was tip line results, so we know that tips came in. The FBI admits thousands of tips came in. None were followed up.

FBI statements at the time said they were following standard procedure. What they meant by that, which they later admitted, is that in background investigations, they are agents of the White House and under White House political direction, so their regular procedures did not apply. The standard procedure they said they were following was the procedure of not following the standard procedures, if you can get around that verbal somersault.

What the FBI did not say is that, aside from standard investigative procedures they did not follow, there are also standard FBI procedures for background investigations. The FBI is a procedure-bound institution. We are still digging and we are going to keep digging, but it looks like they didn’t follow those background investigation procedures either.

For apparently the first and only time in a background investigation, I believe an FBI ‘‘investigation’’ was put under the operational control of the White House so that the White House could craft, with the FBI, the appearance of an FBI investigation without any real investigating. The kind of pressure it takes to do that is intense. That is gale force. That is the spindrift flying. It takes a gale of pressure to have the FBI violate so many of its own procedures, to meekly go along with the White House’s abuse of the FBI’s longstanding reputation for thoroughness and integrity. That is the kind of gale-force pressure the scheme can mount. The scheme had to have its prize.

Republicans even turned their guns on polite, honorable, bipartisan DIANNE FEINSTEIN. She was accused of a corrupt plot to sandbag Kavanaugh. Senator FEINSTEIN is not capable of such a thing, and everyone knows it, so this attack on her was yet another signal.

There was a new narrative to impose. Kavanaugh becomes the victim, wicked Democrats become the wrongdoers, Dr. Blasey Ford and her testimony get swept aside, and, in a well-whipped stampede of partisan tribal anger and grievance, Kavanaugh sweeps onto the Court.

Another signal that I am still seeing now is the effort of rightwing media to cover this all up. After Senator COONS and I pressed the FBI on this bogus investigation, the National Review and other rightwing outlets immediately published articles to tidy things up. Their main source seems to be a former Republican Judiciary staffer who tweeted and then deleted ‘‘Unfazed and determined. We will confirm Judge Kavanaugh’’ just a few days after the Blasey Ford investigation came to light, before this so-called investigation was concluded.

The coverup article suggests three things: First, hey, we had a chance to read all of the over 4,500 tips the FBI received; second, there was a 400- or a 600-—it varies depending on the article—page FBI report assessing the tips and exonerating Kavanaugh that was circulated to all Senators, and all we had to do was read it; and third, that had there been anything wrongful or incriminating or derogatory that was found, it could have been referred for further investigation.

Let’s look at those three claims.

First, this ‘‘open access’’ to those documents was the 2-hour window I was talking about where we could go in and speed-date with raw FBI documents in piles and interview reports— again, no notes, no copies, no pictures; just piles of documents in a room we had to walk through and clear out of— and if we wanted, we could return to review the documents when votes on cloture and confirmation were ongoing. I am not making that up.

The supposed report, this 400- or 600- or whatever page report, is actually a 28-page document compiled by Republican Senate Judiciary Committee staff, not the FBI, with hundreds of pages of attachments to thicken it up. Those 28 pages are pure political whitewash that cast aside the credible claims offered to the FBI for further investigation but altogether ignored. Saying that this Republican committee report—so-called—was available to Senate Democrats is like saying we should have turned on FOX News for the lowdown on these tips—not actually.

As to the idea that we could have referred anything suspicious for further examination, I really don’t know what these rightwing outlets are talking about. If they meant the FBI, that is not true. The FBI and the White House had agreed that the investigation was over as far as they were concerned. If they mean the Senate Judiciary Committee, that is as laughable as the 28- page whitewash.

One last signal here. The FBI continues to dodge questions about this investigation. It was over 2 years ago that Senator COONS and I asked simple, direct questions about the tip line. Only this summer did we receive the first smidgeon of a response. The response deflected us to an MOU between the White House and the FBI, which, when we dug around and found it, which we had to do ourselves, proved not to substantiate what we were being told. So we repeated our questions and repeated our questions, and last week, Director Wray appeared in Senate Judiciary and promised answers in 2 weeks. We will see.

As a prosecutor, I know those cases where you can’t go forward, for a victim, with charges. There could be innumerable reasons, but sometimes you just can’t. In those unfortunate cases, it can matter a great deal to the victim that she at least got an honest and thorough investigation of her claim. Dr. Blasey Ford was denied even that. The FBI sacrificed her to the gale-force political pressure applied by the scheme to get this well-auditioned nominee into place.

And let’s get real. You don’t apply gale-force political pressure for judges who are just going to call balls and strikes. Four hundred million dollars— $400 million—has been spent in dark money on this Court-capture scheme. For $400 million, you don’t want balls and strikes. You want judges who will throw the game for you. You want what you paid for—a captured Court. And if you look at its track record, that is this Court. It is the Court that dark money built, and it is delivering.

To be continued.