October 10, 2018

Floor Speech on Judge Kavanaugh

I’m on the Senate floor to talk about why Judge Kavanaugh is not fit to sit on the Supreme Court and why sexual assault survivors should be heard, not silenced. Tune in:

Mr. VAN HOLLEN. Mr. President, article II, section 2 of the Constitution gives this body, the Senate, the responsibility to advise and consent on judicial appointments. It is an important check on executive power. We are invested with this special responsibility to ensure that individuals nominated by the President to be Supreme Court Justices will be people who will make decisions fairly and impartially, without favor and without bias. That is why Lady Justice wears a blindfold and holds a balance scale on which to weigh the merits of arguments and claims that come before her. The integrity of the Supreme Court requires that every person who comes before that Court has confidence that each Justice will fairly weigh the evidence and the arguments. Judge Kavanaugh does not meet that standard.

I had that concern at the very beginning of this process, and I fear it more than ever today at the end of the process. Any remaining hope that Judge Kavanaugh could be trusted to be an impartial Justice or could be perceived to be an impartial Justice was shattered by his opening statement at his last hearing. In that statement, which he emphasized he wrote in his own words, Judge Kavanaugh launched into an ultra-partisan diatribe and into wild conspiracy theories. He suggested that Dr. Ford's compelling testimony about her sexual assault was somehow manufactured by Democrats as payback for his participation in the Starr investigation, as if Dr. Ford were an actor in a bitter partisan battle rather than a brave citizen who had come forward to tell her story.

While Judge Kavanaugh attempted the other day to walk back his words in his Wall Street Journal op-ed, the damage he had done was irreversible. If he is confirmed, hundreds of people who go before the Supreme Court and the millions of Americans whose lives will be affected by his decisions will believe that Judge Kavanaugh has already put his hands on the scales of Justice before they have had their say in court.

That is why hundreds of law professors, Jesuits, and personal friends withdrew their previous support for his nomination after his statement at that hearing. That is why the American Bar Association has called a meeting to reconsider its endorsement, and that is why former Justice John Paul Stevens took the extraordinary step of saying that Judge Kavanaugh was not fit to serve on the Supreme Court of the United States.

It didn't have to be this way. The process was flawed from the start, and it got worse as time went on. It started when President Trump contracted out the process of picking a Supreme Court nominee to rightwing groups like the Federalist Society and the Heritage Foundation. During his campaign, candidate Trump said he was going to pick Supreme Court nominees based not on who would be impartial, based not on who would be independent but based on who would do his bidding on certain issues. He had a number of litmus tests.

For example, during the campaign, when talking about the Affordable Care Act, candidate Trump promised that, unlike Chief Justice Roberts, his nominee would “do the right thing'' and get rid of the Affordable Care Act. The Federalist Society and the Heritage Foundation didn't need much coaxing, but they dutifully compiled lists of names of people to fit the bill. Judge Kavanaugh fit the bill, and he fit the bill according to his own former law clerks.

One of his former law clerks wrote an article entitled “Brett Kavanaugh Said ObamaCare was Unprecedented and Unlawful'' in order to assure people that Judge Kavanaugh would be the Justice Kavanaugh to undo the protections of the Affordable Care Act. Another one of Judge Kavanaugh's own law clerks said that no other contender on President Trump's list is on record so vigorously criticizing the Affordable Care Act. These are Judge Kavanaugh's law clerks.

We all know that the case of Texas v. United States, which threatens to take away protections for millions of people with preexisting conditions, is currently making its way through our Federal courts as we gather here today. It was filed by a group of 20 Republican attorneys general. The Trump administration decided not to defend the current law and decided not to defend the Affordable Care Act, and he said to these Republican attorney generals to have at it -- to get rid of the Affordable Care Act.

We know that the Texas case is very likely to end up in the Supreme Court of the United States. In Judge Kavanaugh, President Trump has his man, according to Judge Kavanaugh's own law clerks, to rule against the Affordable Care Act -- in doing so, stripping millions of Americans from their protections for preexisting health conditions.

On the issue of a woman's right to reproductive freedom and choice, Candidate Trump promised he would appoint a Justice to take those rights away. Specifically, he said overturning Roe “will happen automatically, in my opinion, because I am appointing pro-life justices on the court.'' Again, he found his man in Judge Kavanaugh, and we have Judge Kavanaugh's own law clerks saying as much.

In a July 3, 2018, National Review article, one of his former clerks wrote: “No court-of-appeals judge in the nation has a stronger, more consistent record of enforcing restrictions on abortion.''

Now, at the confirmation hearing, we all heard Judge Kavanaugh say that Roe v. Wade was an important precedent, and he said to some Senators that it was settled law. We know from many Republican judicial nominees who have testified before the Senate about settled law that as soon as they have gotten on the Supreme Court, it has no longer been settled. In fact, Judge Kavanaugh, before he was a judge, said himself in a 2003 memo that came to light: “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since the Court can always overrule its precedent'' -- a clear indication of where Judge Kavanaugh's reasoning lies, especially in light of the testimony from his own law clerks.

If you look at other parts of his record, you will find that Judge Kavanaugh consistently rules in favor of powerful special interests and against the public interest. He has sided with those who want to lift all of the restrictions on political campaign expenditures. In one opinion, Judge Kavanaugh wrote that PACs are constitutionally entitled to raise and spend unlimited money in support of candidates for elected office because it was “implausible'' that contributions to independent groups could corrupt candidates.

Those million-dollar expenditures on behalf of candidates have no impact on the thinking of those candidates once they are elected. This is according to Judge Kavanaugh and, of course, according to the Citizens United decision. In fact, Judge Kavanaugh has been credited by one campaign finance expert as “the man who created the super-PAC.”

Judge Kavanaugh has gone further. He has even suggested that limits on direct contributions to candidates are unconstitutional. Back in March of 2002, in an email, he wrote: “I have heard very few people say that the limits on contributions to candidates are unconstitutional, although I, for one, tend to think those limits have some constitutional problems.''

We can see that if it is Justice Kavanaugh, not only will he double down on Citizens United, which says that corporations can spend unlimited amounts of money, including unlimited amounts of secret money, but he will question the constitutionality of putting limits not only on independent expenditures but on direct contributions to candidates.

We know Judge Kavanaugh was also the pick for those who want corporate power to trump workers' rights, consumers' rights, and environmental protections. The day that Judge Kavanaugh was nominated for the Supreme Court, the White House circulated a letter to corporate leaders that touted the fact that he would protect their interests. The White House proudly noted that he had overruled Federal regulators 75 times on cases involving clean air, consumer protections, net neutrality, and other issues.

When it comes to workers' rights, Judge Kavanaugh has routinely sided with corporations that want to prevent workers from unionizing, even at President Trump's own hotel in Atlantic City, which at the time had admitted its refusal to bargain with workers in a 2012 case.

When the card dealers across several hotels voted to unionize, Judge Kavanaugh and a panel of judges invalidated the will of the workers, overturned an administrative law judge's ruling that the union be certified, and allowed the Trump hotel to continue violating workers' rights.

On environmental issues, Judge Kavanaugh's record shows that time and again, he favors polluters over clean water and clean air. With his confirmation, it will be much harder for Americans to seek redress in the courts, and it will be easier for polluters to continue to pollute the environment. As a circuit court judge, he has written 10 dissenting opinions in environmental cases, and in each one, he has argued against the side that sought to protect the public health and the environment.

Judge Kavanaugh's sweeping view of executive power should cause alarm among every Member of this Senate, Republican and Democrat alike. We have all heard the testimony, and we have seen the writings. It appears to be no surprise that President Trump, who is watching that Mueller investigation get closer and closer to his doorstep, would want a judge who will give excessive deference to the executive branch -- somebody who may be on the Supreme Court when that Court has to decide whether or not President Trump can be subpoenaed in that case or otherwise or be brought to justice in that case, if that is what the conclusions demand.

It is clear on all of these issues that President Trump and the Republicans had their man in Judge Kavanaugh.

They have someone they believe will overturn the Affordable Care Act, once again giving insurance companies a green light to discriminate against people with preexisting conditions.

They think they have someone who will overturn Roe v. Wade or dramatically limit a woman's right to reproductive freedom and choice; someone who will gut environmental regulations, undermine workers' rights, and consumer protections; someone who will give corporations the ability to continue to spend unlimited amounts of money in elections and who might even argue that the contribution limits to candidates are unconstitutional and can be limited; and, finally, someone the President believes will get him off the hook if the Mueller investigation gets too close to him. 

So here we had Republicans in this Senate and a President on the verge of getting someone they thought could do all of those things, and then something unexpected happened: The country learned about what happened to Dr. Ford.

Our Republican colleagues seem to have forgotten that Dr. Ford did not want to come publicly to report her sexual assault. It was only when she found out that Judge Kavanaugh was on the second short list that was released that she became concerned. Even then, she didn't want to come forward publicly. But she thought it was her civic duty to let people know what had happened to her, so she reached out to her Representative in Congress on a confidential basis.

The story did become public, and when it did, she felt dutybound to testify before the Senate Judiciary Committee and tell Senators what happened to her on that awful day. We all know she had nothing to gain. She has been subjected to all sorts of awful death threats and other kinds of verbal abuse. She had nothing to gain and everything to lose.

Our Republican Senators who listened to her testimony, for the most part, said that her testimony was both powerful and credible; we know she answered questions directly. By contrast, Judge Kavanaugh's testimony was partisan, evasive, and, on many points, even under oath, untruthful.

When the female prosecutor Republicans hired to ask questions for them could not discredit Dr. Ford's testimony, we saw many of our Republican colleagues launch into full partisan attack mode; no longer did the facts matter. They picked up on Judge Kavanaugh's opening statement about partisanship rather than seeking to get to the truth about what happened to Dr. Ford and others who have alleged sexual assault.

What mattered was ramming through their nominee. The majority leader, Senator McConnell, said they would “plow right through'' and, by God, nothing was going to stop them. They even scheduled the vote on Judge Kavanaugh before they had heard the testimony about sexual abuse and sexual assault from Dr. Ford and Judge Kavanaugh.

It was only when Senator Flake recognized what a sham the process was that he at least forced the Republican leadership to do what they did not want to do and agree to a short FBI investigation into the allegations of Dr. Ford and Deborah Ramirez, but the goal never changed. The goal of ramming through the nomination never changed.

That is why Senate Republicans and the White House dramatically limited the scope of the FBI investigation. They tied the hands of the FBI. They told the FBI whom they could interview. The investigation that was already going to be short at about a week was cut even shorter and was finished up in a matter of days.

What is the result? The result is completely predictable. The result is we have lots of key witnesses who were not interviewed who say they have corroborating evidence to support the allegations of Dr. Ford and Deborah Ramirez. The country will continue to hear from these witnesses after today's vote.

Because the investigation was orchestrated by the White House and the Senate Republican leadership, the FBI was not allowed to do its full job. It would have been better for all parties involved -- and I mean all parties, including Judge Kavanaugh -- to have had a thorough investigation where, at the end of the day, the public could have confidence that all of the available evidence could have been tracked down and reviewed. That would have been best for the integrity of the Court and the integrity of the Senate.

We all know there is no requirement that we rush this confirmation. We all know that. After all, it was the Republican leader who kept a seat open on the Supreme Court for months and months and months after President Obama had nominated Judge Merrick Garland. So this notion that there is some kind of artificial deadline is simply untrue. This is all being done, as the majority leader said, to “plow right through.''

Taking time to do the investigation right would have put the entire enterprise at risk -- the entire plan to put on the Supreme Court the person President Trump and Republicans believe will deliver the legal outcomes they want. Even if all of the testimony shows he can no longer be impartial, in this case, his record and testimony indicate that he will deliver the legal outcomes they want. 

Dr. Ford's courage in coming forward and telling what happened to her has empowered many of my Maryland constituents and many others around the country to come forward with their own stories of abuse.

I have received written statements from over 50 Marylanders -- over 50 Marylanders -- telling me about the sexual abuse they had encountered. Some of them told me they have shared with me what they have not shared with their own family members. They felt it was important that I know why they did not report their abuse at the time, why they did not tell their parents, and why their memories were not perfect decades later.

They told me what they do remember. They told me they remember the clothing they wore the day they were assaulted. They told me they remember the scent, the cologne, and the feeling of unwanted hands. Those memories haunt them.

These stories are reminders of how our society has let down survivors of sexual assault for decades. The way that these survivors have been treated has been shameful. I am humbled by the trust they have shown in sharing these experiences with me, and I will let the stories of a few of them speak for themselves here on the floor of the Senate.

Here is what one woman wrote:

Once [when] I was 16, I was at a party. There was alcohol. He was popular, I wasn't. He was big and strong, I have never been. He threatened me afterwards. He needn't have bothered. He told me no one would believe me. He told me I wanted it. I showed a friend the bruises. He said everyone would say I was a slut. I told another friend I was frightened. She said I should just avoid him in school. I told an adult I trusted at my job. She told me about how when she reported when she was young, how the police treated her, how her parents reacted. How she regretted saying anything. I never told my parents. I went to a free clinic and the “therapist'' asked how could I know it was rape if I had been drinking.

Those are the powerful words from one Marylander. Another wrote:

I remember the assault vividly. I was on my way home from church. I don't remember the sermon before. Details are fuzzy. But I remember the assault. I remember looking at a nearby home where I knew elderly people lived. I could see that their TV was on and I wondered, “Would they even hear me scream?'' I didn't tell people. I didn't think people would believe me.

Another constituent wrote me this quickly, without editing. She told me she cried when she read it to her husband. Here is what she wrote:

Having experience in working with victims in a prosecutorial manner, or as a judge, or even defending the accused does not make you an expert. The expert is the victim. I am that victim. I am that expert. And as such I can tell you absolutely, without hesitation, that what haunts you most, what affects how you relate in the future with your loving spouse, what affects how you feel about yourself, and what affects even your sense of smell, is the memory of the person who abused you. Not the address where it took place, not the time on the clock, not the day of the week -- but the smell of the person assaulting you, the feel of their hands, the confusion in your head because you don't know what is happening because it's all happening so fast, and yes -- their name. You never forget their name.

She went on to say:

Then comes the shame. What did I do to cause this? What will people think of me now because I've been touched, I've been tarnished, I'm not pure. Will I be believed? At this point my life has already been altered beyond repair, but it's an internal alter. If I talk, it alters my external world as well. Maybe it's better to just not talk because then at least I can pretend things are as they have always been. I can just pretend that I'm exactly the same person -- but I'm not.

Another wrote that she understood that a man could move on from assaulting a woman particularly if they were drunk at the time. She said:

The man who assaulted me later acted as if he was catching up with an old friend and had no memory of the event. I have several friends who have experienced the same thing.

Another echoed a similar experience, writing:

He had been drinking heavily with friends at a restaurant or bar. I had not. Later that night, he raped [me]. He was very inebriated and displayed a complete personality change. He was violent and angry and did not even seem to see me. I was paralyzed and probably saved my own life by not fighting back as he had essentially become a rabid animal. The next day I confronted him about what happened and he had no memory of the crime he committed.

These are not isolated incidents for survivors. As I have said, I have gotten over 50 -- over 50 -- personal testimonials from survivors since Dr. Ford had the courage to come forward. These are people who have not shared what happened to them with some of their closest friends or family members. These are stains etched in their memories. Many of them never told a soul. Others were ignored or dismissed when they brought up these awful experiences and were told to stay quiet.

It is an insult to these survivors when some have called them partisan. In many cases, they went out of their way in their messages to me to say their concerns had nothing to do with ideology or partisanship -- nothing. Some told me they are Republicans, and others are Independents. Some of them grew up in families who had no care about politics. Others told me they were Democrats but they would be more than willing to accept a different, conservative judge -- but not this one.

When Donald Trump went to a campaign rally and mocked Dr. Ford, he mocked every one of those 50 survivors who wrote to me. He mocked every survivor of sexual abuse around the country. And this Senate's decision to do as the majority leader said, “plow right through'' without undertaking a thorough and serious investigation into the charges from Dr. Ford, Deborah Ramirez, that also disrespects these survivors. That is what they say to me.

Of course, Judge Kavanaugh did the same thing in his opening statement at his most recent hearing because his entire opening statement suggested that Dr. Ford's coming forward was part of some political conspiracy. Unfortunately, that is where this conversation has gone ever since -- not an effort to really get to the truth, to really get all the facts but just to do what the majority leader said before she even testified: “Plow right through.''

We know that etched above the Supreme Court are the words “Equal Justice Under Law.'' It does not say “plow right through.''

The decision to “plow right through'' will undermine and haunt the integrity of the Supreme Court for decades to come, and it will also haunt and undermine the integrity of this U.S. Senate.

I yield the floor.