ms. cantwell: mr. president, i come and join my colleague on the floor from oregon this morning, and i thank him very much for his hard-fought effort to try to illuminate the american people on the issues of the nominee that we will be voting on. as nightfall does not come at once, neither does oppression. in both instances there is a twilight that we all must be aware of change in the air however slight less we become unwitting victims of the darkness. those aren't my words. those are the words of the late supreme court justice william o'douglas. yes, that's right, i quoted william o'douglas, not because he was from washington or from maine originally, but because i wanted to bring up the rights of americans that could be undermine by a confirmation of

judge kavanaugh to the supreme court. that is because for generations the united states supreme court has been an institution that affirmed rights of americans and moved our country forward, especially -- especially when we needed it most. in 1954, it made a landmark decision to end segregation in our schools and to rightly give access to equal education. in 1964, it recognized the rights of privacy and the ability to access contraception. it's hard to imagine today that in this era that we needed that fundamental right that had previously been blocked and yet it was. in -- that they had equal protection under the law. yes, these are rights that have been decided by our court and have moved our country forward. so when those who say that president trump nominated judge

brett kavanaugh to the supreme court because he was on a list of an organization that wanted to see the literal sex of a statute -- text of a statute upholding the rights of americans, i became very concerned. when it comes to the rights of consumers, health care rights, environmental laws, privacy rights, labor rights, i want to know where a supreme court justice is going to be in upholding those hard-won rights that americans and our societies have pushed forward on for decades. and in this case, he will be replacing a justice that has been a key vote on many of those fundamental rights in america. so i definitely expressed my opinion that i did not believe that judge kavanaugh would

protect those hard-won rights and concerned that he does not have a judicial philosophy that is in the mainstream views of america. he has the most dissents of any judge on the d.c. circuit so literally that's like saying he's dissenting even with the most conservative judges, he's still dissenting. so i don't find those views in the mainstream views of americans. but let's just take one example, health care. more than three million washingtonians in my state have preexisting conditions, such as diabetes, heart disease, or asthma, and americans don't want to be discriminated against because of their medical history. more than 75% of americans support the preexisting conditions that have been put into law under the affordable

care act, and these protections that help them from having medical debt an uncompensated care and all of these issues are very important for us to continue to protect. in 2011, judge kavanaugh refused to uphold the constitutionality of the affordable care act and he has criticized the supreme court's decision to uphold parts of that law. in his confirmation he once again refused to say if these current protections for americans are constitutional. his record suggests that he will not defend these protections or congress's clear intent on writing them. and it's not just some theoretical issue, these protections today are being threatened in the courts. they are being threatened by a group of republican attorneys general to strike these protections down with the health care law and the justice

department here has decided to join those states in asking the courts to strike down these preexisting conditions protections. so this case is working its way through the court system and could likely end up before the supreme court. some have suggested, well, done worry about that because justice roberts, he'll uphole the health care law -- uphold the health care law and be the swing vote and judge kavanaugh's appointment to the supreme court is irrelevant on this point. well, that is wrong. first, you can -- you really can't count on chief justice roberts in upholding the affordable care act. in fact, that's what the attorneys general are arguing that his previous decision is help in striking down the law and that there are other times and circumstances now because the federal government isn't fighting to protect the affordable care act, which it did in previous administrations, that there is no guarantee that

justice roberts will rule in favor of the law. and there are other aspects of the affordable care act that he's already cited against. so to think now that this fundamental right that has been so hard fought for so many people, i can just tell you in my state, i have been to hop after hospital and health care after health care facility, the doctors say to me they can't imagine the time of what it's going to be like to go back to prior to preexisting conditions. it has become such a norm to make sure that they are covering people that they couldn't imagine that kind of discrimination today. and, yet, when it comes to reproductive rights, those are under threat as well. in 2017, judge kavanaugh suggested he supported judge rehnquist's dissent in roe v. wade which called the landmark decision a free willing unrooted

rights not in the nation's history. for anyone who -- i guarantee you i asked every judicial nominee whether he believed in the number of rights guaranteed in the constitution for the rights of privacy or he didn't and the reason i did that is because those who really don't believe that roe was rightly decided believe that those rights aren't being enumerated and could jufer turn them in the -- overturn them in the future. while judge kavanaugh may now claim that he believes roe is settled law, his past raises doubt so that fact and during his confirmation hearing he refused to say whether it was wrongly decided. well, why is that important? because in the near future if a majority on the supreme court decides that it was previously wrongly decided, they can just overturn it. if judge kavanaugh does not believe the constitution gives women the right to make

decisions about their own body, whatever assures he gives us now about precedent is hollow. this is why it is so important to people in my state. we voted in 1991 by an initiative by the people to have this right in our state law and we in the state of washington and millions of women want to see every woman in america have these same rights. so i take president trump at his word when he said he was going to put a nominee on to the court that automatically would overturn this. these justices roberts and conservatives like alito and thomas and roberts and gorsuch would now be joined by kavanaugh and overturn this right in a 5-4 decision. even if they don't fully overturn it, they could effectively undermine its protection piece by piece. chief justice roberts, for instance, has repeatedly upheld

restricted limits on reproductive rights. these justices have proven themselves willing to strict access to safe and legal abortions. so, as i said, my state decided by the people that they want to protect -- fronted to probt this and -- wanted to protect this and i'm here to defend the women in the united states of america. if judge kavanaugh were to serve a lifetime appointment on the court he could pose threats to lgbtq americans. the supreme court will likely hear cases that will impact this community. there are cases pending such as the arlene flowers case where a florist refused to provide services for a gay couple's wedding, the supreme court could hear an argument on president trump's discriminatory ban of -- at judge kavanaugh on the bench because his broad view of

religious freedom to provide a license to discriminate against these individuals. judge kavanaugh's record also suggests he will be hostile to the protection of other privacy rights. in 2015, after it was revealed that the national security administration n.s.a. had been collecting americans phone records in bulk without warrant, judge kavanaugh decided that the security outweighed the individual's need to privacy. he supported expanded warrantless surveillance by the government. judge kavanaugh has ruled in favor of restricted voter identification laws, raising concerns that he would support scaling back hard-won voting rights. the right is sacred in our country and the last thing we need is a supreme court that would refuse to defend it. i'm also concerned about his precedent in important issues that could affect native americans. native americans need to have their sovereignty recognized and

their rights protected. in this term alone there could be three cases before the court, and at risk are some of the most basic tribal rights in our country. so judge kavanaugh's positions found in his own writings before he became a federal court judge indicated that he did not take seriously the constitutional status of tribal governments and the solemn obligation of the united states when it entered into treaties and agreements with tribal and indian people and alaska natives. so time and time again these issues are before us and before a court, and that is why, as i said, i believe in a court that protects these hard-won rights. i know that some will tell you something differently, but where we would be on just the basic rights to contraception if we didn't have a court that looked at the unenumerated rights in

our constitution? where would we be with equal access to education and now where we will be on the future rights of privacy that need to be protected in the united states of america. time and time again judge kavanaugh favored big companies over every day americans using a twisted logic to defend big corporate polluters. he seems to have a particular animus against the environmental protection agency and their efforts to follow congress and the direction that has been given in law to reduce air and water pollution. that is a direct affront to the leadership of people like ed muskie who led congress in his effort to control pollution and in 1990 when congress amended the law to combat acid rain, ozone depletion and auto emission and the u.s. supreme court has uphold the -- upheld the clean air act numerous

times. in 2007 in a massachusetts case, the supreme court ruled that the environmental protection agency has the authority to regulate greenhouse gases under the clean air act and justice kennedy provided the fifth and deciding vote in that decision. but as kennedy's replacement on the court, the government's ability to limit climate change could be lost. that would mean everything from not addressing these impacts that we're seeing on our coastal communities to what we're seeing to damage in wildfires and it could meern the report -- mean the report done by the government accountability office that climate change is costing over $620 billion every year, that those will continue to be ignored. we want a supreme court who is going to follow the law and basically abide by what congress has said and uphold that and that is what the court has said

as well. judge kavanaugh, though, said he didn't think the e.p.a. had the authority to regulate air pollution across states. the u.s. supreme court reversed his decision and opinion in a 6-2 decision they concluded that judge kavanaugh had improperly applied his own policy junlts rather than the -- judgments rather than the plain text of the statute written by congress. that is what the supreme court said in reversing him. so i'll say it again. the united states supreme court said judge kavanaugh used his own policy judgments rather than the way the law was written by congress. so yes, i have concern that his views are not in the mainstream of america and of judicial philosophy when it comes to protecting our environment. in another case, he opposed the e.p.a.'s interpretation that it can control pollutants because he thought that the terms of the clean air act didn't include

that. he also sought to limit their authority to protect americans from greenhouse gases. in a 2013 case, the center for biological diversity, kavanaugh said that the clean air act does not even cover carbon dioxide at all. in fact, he ruled to iraqien environmental protections at 89% of the cases that have come before him. so i do not call that in the mainstream views of judicial philosophy. so tomorrow, we will have major issues before us as this vote takes place. when it comes to whether you are siding on behalf of the american worker or a large corporation, i, too, have concerns. in a 2015 case, he overruled the national labor relations board, siding with a hotel that had requested police officers to issue criminal citations to union demonstrators who were

legally protesting. and in a case he banned employees from interaction with customers or who worked in public forum wearing union shirts that said certain words on them. so the nlrb found that the employer committed an unfair labor practice, but judge kavanaugh disagreed, concluding that the union members did not have a right to wear the shirts because the company believed they would be damaged. i can tell you because i am so concerned about the information age that we live in that when it comes to these issues as it relates to protecting consumer rights, there is no bigger consumer right than exists in protecting those on the internet with the right to access and information. we cannot have a two-tiered internet system in which these rights are not protected by a court, and in this case, judge

kavanaugh wrote that the f.c.c. did not have the right to regulate broadband as common carriers. instead he made it clear that he believes that bawbd cable companies should be able to control your internet experience as they see fit. as they see fit. so part of his flawed analysis rested on the idea that the f.c.c. was purporting to do -- protecting consumers with a type of rule that was so consequential that it could only stand if congress bestowed clear and unambiguous authority on the agency. this is in contradiction to the supreme court's own precedent which it determined the f.c.c. did have the authority to decide whether and how to regulate broadband. the other part of this faulty analysis rested on the view that cable and broadband companies that operate these pipes that serve on as a ramp to the internet have first amendment rights, and they should be able

to access those rights and deny or limit consumers' access to content. i guarantee you saying that first amendment rights by cable companies to charge whatever they want to charge you for the future is not in the mainstream view of judicial philosophy or what the american people have come to expect. so let me say again these important issues are not part of judge kavanaugh's ways to protect these rights of health care, of the environment, of privacy, of consumer rights, and the ethics that we take -- and the things that we take so dear that we have all fought for, legislated for, and had previous courts upheld and make sure are preserved. so i'm not buying the notion that a strict textualist is the way to go. i believe my colleagues have

every right on the other side of the aisle to agree to that, but i would ask them how are you ever going to move america forward in decisions like our desegregation of education or on contraception or on these other privacy rights if you don't interpret the constitution to today's day and needs? and i would say now while the biggest threat we face is an overreaching of an administration that every single day does something not to comply with the law as it is written. the president just issued an executive order weeks ago that basically said he didn't even have to worry about administrative law judges. the agencies could hire their own. which means an agency can decide whatever rule it wants and just hire an administrative law judge and make it so. those aren't in the mainstream views of america, and is this

judge going to challenge the president on that or is he just going to say that he agrees with the president of the united states on what as one white house counsel from the nixon administration said judge kavanaugh, if confirmed, quote, will be the most pro-presidential power supreme court in the modern era, end quote. well, i can tell you this. if those on the other side of the aisle are promoting this nomination because they want a rubber stamp on the trump administration, we will fight you every step of the way. the supreme court is supposed to be the impartial arbitrator, the one that even though we have different congresses and different views interprets the law over a period of time that does not make those political decisions but makes the impartial decisions. and to have somebody on a court now where every day an

administration is not following the rules of the law and basically subverting them, it's a time where we need a supreme court to stand up and do their job and hold an administration accountable. i'm sure it's not a pleasant activity to have anybody hold an administration accountable, but this is an important time for checks and balances in the united states of america, and i don't believe that these rights of individuals or the rights in protecting us from the overreach of this administration will be defended by this nominee. now, i know a lot has been said today about what the process for this nominee has been before the courts. i know there is a lot that will continue to be discussed after this day about how this institution handled this situation and accusations against judge kavanaugh. all i can say is that we need to do better. we need as an institution to do

a better process in evaluating these situations and how to make them less partisan, but i will tell you this -- i found the testimony by dr. ford credible and that this institution's latest avenue of saying, well, it must have happened, it just wasn't him, is another example of denial of information instead of getting to the truth of the situation. we have to do better because we're an institution that's supposed to lead on this issue. we're not supposed to be an institution like the other institutions we have seen sweep these allegations under the rug only to come back at some point in time when there are 300 cases or 400 cases or x number of people who have been impacted and thereby they all have basically recessed the wave over the allegations that have been denied and denied and denied.

this institution has to figure out a better way to lead on this issue, and i plan to continue to work with my colleagues on both sides of the aisle to help us continue to focus on this. so many people in america are counting on us. so many women in america are counting on us. so many tribal women are counting on us. the statistics are just too high to leave a nominee on the court with the doubt of this investigation and this situation not rendered to a point where more people felt that the information was fully investigated. we have to do better. we are going to be challenged as we move far. as i said, i don't -- move forward. as i said, i don't believe judge kavanaugh is in the mainstream of judicial philosophy in the united states of america. that is why i'm not supporting him. i didn't support him the first time he was nominated to the court because i had doubts that he would be that individual who

put those political partisan things aside and be that impartial justice. so i didn't make a decision right away. i went back and researched his record. i looked at these decisions on these basic rights that so many americans are counting on, and i can tell you this -- these rights you cannot count on judge kavanaugh, and therefore he does not get my advice and consent to move forward to the supreme court. i thank the president, and i yield the floor.

the presiding officer: the senator from connecticut. mr. murphy: thank you, mr. president. this is the -- this is the big leagues for a united states senator. depending on how long you serve here, you only get a handful of opportunities to vote on a confirmation of a supreme court justice. we may know how this is going to go tomorrow, but many of us who have very serious concerns about the precedent that this confirmation creates for this country that we love are going to be here on the floor tonight through the night trying to implore our colleagues to think differently about this, or at

least think about how we can do this differently the next time around and how we can come to some common understanding as to what the rules of the game should be and what the standards should be when we are interviewing candidates for one of the most important jobs in the world, the united states supreme court. and so i have a few things to say here tonight as the hour gets late, but i wanted to start, mr. president, by talking a little bit about what the standard is. what is the standard that we should apply when we are considering a submission from the executive branch to sit on the supreme court? it seems to me as if this whole exercise has been conducted in a manner to suggest that, a, there

is no one else eligible for the supreme court other than brett kavanaugh, as if we live in an adam and eve world in which we have few, if any, alternative choices, and b, that this body owes some significant and potentially binding obligation to the president when he makes his choice. and so i just want to go back over the standard for a moment because it is not uncommon for the united states senate to reject supreme court nominees that have been sent to this body. in fact, if you walk out the door on the other side of this

chamber and you hang a left, you will quickly come to the senate reception room, and in that room there is a relatively freshly painted picture of oliver elsworth and roger sherman. this is one of the newer portraits here in the capitol. it depicts two connecticut delegates to the constitutional convention scheming over what would become called the connecticut compromise. this is the breakthrough at the constitutional convention that establishes the senate with two members per state and the house of representatives, elected by proportion of population per state. oliver elsworth is a significant figure in the history of my state and in the history of this country, but not only because of his contribution to the adoption

of the u.s. constitution. he also plays a significant role in the beginning of the american judicial system. he is the father of the judiciary in that he awtdz orders a -- authored the judiciary act which established the federal court system. and then he plays another important role in the early history of the courts because when it was time for george washington to nominate a second supreme court chief justice, the name that he sent to the united states senate was rejected. he sent his friend john rut rutledge. but because his friend john rutledge played a farrell

couldn't -- fairly controversial role in the adoption of the jay treaty, the senate voted rutledge down. washington, not wanting to be embarrassed again, knowing that he needed the consent of the united states senate to get someone into that role picked one of the sean's own -- senate's own. he picked oliver ellsworth who was the foremost expert on the judiciary in the united states senate and he became the chief justice of the united states supreme court. his bust sits inside the old supreme court chamber here in the united states senate today. i tell that story only because it's a reminder that at the very earliest stages of the american republic, the senate decided to exercise its indies cession when it -- discretion when it came to decisions of the united states supreme court by the president

of the united states. george washington figured out pretty quickly that it not owe automatic deference when it comes to choices placed before the senate. it is advice and consent. in fact, that practice of refusing to give complete and total deference to the executive has continued up until this day from world war ii until this moment i think the number is seven -- seven selections by the president that ultimately did not get confirmed. sometimes the senate gives a hint ahead of time that a nomination isn't going to go so well and the president with draws that nominee. so not in every case is there actually a vote before the senate. oftentimes the signal is clear enough from the senate that consent is not going to be given and the administration with

draws that nominee. and so let's be clear that there is no binding obligation on behalf of the senate to say yes to a nominee that we believe to be flawed or wrong for the moment. no obligation on behalf of members of the president's party and no obligation on behalf of members of the opposition party. second, i have heard my republican colleagues ad nauseam treat this selection as if we are a court of law with a deficitting in front of -- with a deficitting in front of -- defendant sitting in front of us whose freedom will be taken away if he doesn't get a positive vote for confirmation. why do i say that? because over and over again i heard this idea that brett

kavanaugh is innocent until proven guilty, that there is a presumption of innocence with respect to the claims that surround him. now, those are not traditionally terms that have been used with respect to the choices we make over nominees to the judicial branch or to the executive branch. those are terms that are used in courts of law. the presumption of innocence is given to a defendant the high burden of proving guilt beyond a reasonable doubt is placed on the prosecutor because the stakes in a criminal trial are fundamentally different than the stakes in an appointment to the supreme court or to become the head of a department. in a criminal court of law, the bar -- the standard is set high because the consequences of that

defendant is his liberty being taken away from him or her. that is not the case for brett kavanaugh or any other name that gets sent to this body for confirmation. if brett kavanaugh was not to receive a confirmation vote to the supreme court, he would go right back to the appellate court with a nice job and a nice salary as would many other nominees that don't get a confirmation vote from this body. their liability isn't taken away. they go back to some pretty good jobs. that's why it's nonsensical to suggest that the standard we apply here to a nominee is similar to that of a criminal court. we don't have to prove that reservations about a nominee can

ultimately be held to the same standard as in a criminal court. why? because the qensz are lower but -- consequences are lower, but also because -- but also because there are other people who can serve that role. you err on the side of callings often when it comes to nominations because the consequences for the country of simply moving on to the next nominee for a cabinet post or for a judicial job are, frankly, fairly low. the standard is not a criminal standard, and we have often talked about the fact that this is much more like a job interview. i think that's right. i don't think it's a perfect analogy, right? this is a pretty special and important job.

there are some procedures around this job interview that we don't hold ourselves to when we're interviewing somebody for a position in our office, but let's all be honest with each other. if somebody showed up in our office alonging -- looking for a position and their file looked like the file of brett kavanaugh, none of us would hire that individual, not a single one of us. tell me that a united states senator would hire an individual who came to their office who might have looked qualified, who might have a sterling resume but whose file included several credible allegations of serious misbehavior. you probably wouldn't even go through the trouble of conducting an exhaustive inquiry

into whether those allegations were true or not, as i think we have an obligation to do with respect to this case. i would argue we had an obligation to do that investigation because this isn't a job interview for a person who answers a phone. if those allegations were before us as employers we wouldn't hire that individual. we wouldn't hire an individual who conducted themselves in the job interview in the same way that brett kavanaugh conducted himself when he came before the judiciary committee last week. it's much more like a job interview than it is criminal trial. it doesn't neatly fit into either category but we wouldn't hire that individual in our office because we know -- we know that there are plenty of other qualified applicants for the jobs that we are looking for

and why take a chance on someone who might -- who might be fundamentally wrong for the position that we're interviewing for. and so i think it's important at the outset to get the standard right and the terminology that gets thrown around here as if this is a criminal trial just misunderstands the nature of the job that we have before us. and so i want to turn to the arguments that i would use if i thought i had the chance to change the mind of some of my republican colleagues this evening. that's probably impossible at this late stage, but we're here so i might as well give it a try. now, i agree with everything that senator cantwell said about

the jurisprudence of judge kavanaugh on the appellate court. i think he's a dangerous nominee because he does fall fairly far out of the judicial mainstream. i heard senator collins on the floor earlier today talking about how she hoped that he would be a bridge between the two sides of the court, how she thought that he might ultimately be someone who would lead to less 5-4 decisions being rendered on the court. she used as evidence of that hope a statistic that is curious. she talked about the fact that he voted with merrick garland 93% of the time on the court. well, brett kavanaugh has voted

with merrick garland 93% of the time on the court because the appellate court renders most of their decisions in a unanimous form. and so all of the justices arguing with each other on the vast majority of cases so that statistic doesn't tell you whether or not brett kavanaugh is a bridge builder or whether he is an outlier. fortunately there is another more relevant statistic. that is the percentage of times that a justice dissents that stands away from his colleagues who have formed a consensus and renders an opinion of his or her own. no one on the d.c. circuit dissented during judge kavanaugh's time on that court more than judge kavanaugh, and some of those dissents were

pretty creative dissents. some of the things that we are most worried about with respect to the friendliness of judge kavanaugh to corporate power, his distaste for regulation comes from those dissents in which democrats and republicans, or put better, judges appointed by democrats and republicans on the d.c. circuit, found a way to agree, but judge kavanaugh stood over here with some novel theories of the case as to why regulatory bodies couldn't get into the business of big corporations. his history in the appellate court is not of being a bridge builder, it's of standing outside of that mainstream, challenging the consensus. that's who judge kavanaugh is going to be on the supreme

court. i'll give you an example, something that's close to my heart. i have a lot of arguments back in connecticut about the future of gun policy in this country, just like we have a lot of arguments here. but by and large people in my state, even the folks who don't agree with all the things that i would do if i were in charge of america's gun laws, they generally think that it should be up to us to decide. they might not think that we -- that the second amendment allows us to pass a bill banning all guns in the country, but they think the question of who can own guns and what kind of guns can be sold, that that's a question better left to the legislature. brett kavanaugh has a really novel theory about the limits of the legislature's ability to

regulate gun ownership. it's a theory that even for him is pretty far outside of the mainstream and he actually laid it out for the judiciary committee in a series of questions and answers with the ranking member. he said, listen, i think that if a gun is in the commercial space, the constitution grants it permanent protection. he's argument is that once a gun is sold privately, you can never, ever ban it. now, that's ridiculous, and that's not how any courts have read the law prior to this time. this congress has regularly made the decisions that some weapons are not proper for commercial sale and have pulled them out of the commercial market.

in the 1930's congress decided that the automatic weapons that were out on the streets, the so-called tommy guns should come out of the commercial market. in the 1990's we made the decision that the assault weapons, semi-tactical weapons should be restricted. kavanaugh says no, once a gun is sold privately, you can't take it back. no matter the mistake that congress thinks it might have made in legalizing that weapon, once it's out there, you cannot take it back, so says the second amendment. a radical idea. it's a radical idea. ed is his theory of the case on abortion rights now. we can talk about the case that

came before his court in which he denied the ability for a young immigrant woman to seek an abortion despite the fact that she fight all the other legal requirements for that procedure, or we can just look to the fact that in his testimony, he parroted the political jargon of the antichoice movement. he used phrases that courts don't use when talking about the issue of abortion or reproductive health care. he used the phrase abortion on demand as a ridiculously politically loaded term. i have no idea what that means, but it's a term that's regularly used by the antichoice political movement. you can't get an abortion from a vending machine, but that's what the phrase abortion on demand seems to suggest exists in the world. judge kavanaugh used it. he also called birth control an

abortion-inducing drug, which it is not. it is not. simple science can serve to explain that birth control certainly can be prevent a pregnancy but it does not cause an abortion, but judge kavanaugh used that term in his confirmation hearing because it's part of the political opposition. it's part of the sort of basket of propaganda that gets used to try to pull down protections for reproductive choice around the country. and so i share many of the reservations that my colleagues have expressed when it comes to judge kavanaugh's record on the second amendment, judge kavanaugh's testimony before the

judiciary committee in its first hearing on the issue of reproductive choice, as well as the reservations that many of my colleagues have about what he will do to the affordable care act. now, i will concede that his writings on the affordable care act are limited. he has expressed some hostility to the affordable care act. he said in one of his decisions that if the congress could go so far as to require people to buy health care, there was no limit to the potential reach of congress' power. but on this one, i just take the president at his word. the president said that he would never make the mistake that george bush did in appointing someone to the supreme court who would uphold the affordable care

act, as john roberts did. he promised that he wouldn't make that mistake again. and on this one, given the over the top incessant, persistent hostility that the president has expressed for the affordable care act, i trust that he has made good on his promise and that he has sent someone to us who is going to work with him to try to unwind the affordable care act. i was an early opponent of judge kavanaugh. i didn't wait very long to express my opposition because i just see that he is so far out of line with connecticut values that he is not going to be a judge in the model of those true

centrist judges that maybe i didn't agree with on issue after issue, but i thought gave each question before them a fair look. but i also don't think that that's my best case with my republican friends because you feel differently about the affordable care act and about the second amendment and about the issue of choice than i do, and so it's probably not the best tactic at 1:00 in the morning to try to convince you to vote against brett kavanaugh based upon his conservative, i would argue right-wing record as an appellate judge. so let me try some different arguments out on you. and some of these will have to do with process. and listen, process is important. process is important because

it's kind of all we have. when it comes down to it, democracy holds together because of a set of rules, a set of rules that we all agree to follow. it's called the rule of law broadly. but in this place, it's a set of precedents and traditions that have held up pretty well over 240 years. as those precedents and traditions start to fall, so do the edges of democracy itself. and so i know to some it feels like insider politics, beltway jargon to be talking about the process that we have gone through here, but there are some really important precedent-shattering decisions that have been made by the majority with respect to the kavanaugh nomination.

the first is just the documents surrounding brett kavanaugh's candidacy. as many of my colleagues have said, we've seen somewhere around 6% to 7% of all of the documents relative to brett kavanaugh's time as a judge and as a staff person in the executive branch. we have seen a small slice of those documents. i think the 7% number applies to the documents relative to his time in the white house. i listened to senator lee earlier tonight talk about the fact that we will -- you know, it wasn't his fault that we didn't see the documents because those are the possession of the administration, and the bush administration and representatives of the bush white house, they're making the decisions about what documents that congress can see and can't see independently of brett

kavanaugh. well, that's not true. that's not true. the individual who is overseeing the decision about which documents congress could see and couldn't see is a close con if i adapt, ally -- confidant, ally and colleague of brett kavanaugh. two weeks ago when brett kavanaugh's nomination was thrown into doubt and the white house convened a war room, a war room of brett kavanaugh's most loyal, trusted advisors, the individual who was vetting the documents for the bush white house was in the war room. this was not an independent exercise of discretion on behalf of the bush white house. this was one of judge kavanaugh's primary backers

making decisions on what documents we could see and what we couldn't. this is a political job, and we are left to wonder why did we get so few? what is in those other documents that were so explosive that you had to put a political ally of brett kavanaugh in charge of the disclosure of those documents and give us so few? and here's why the process matters. because once you have made that decision that we're going to create a structure by which we just withhold evidence that would be relevant to the decision that the senate makes because -- well, just because, it becomes the new rule.

now, i'm not here to say what goes around comes around. i'm just telling you that once you make the decision that you don't need to see the evidence on a particular nominee because -- well, because we're not going to give it to you because we think it might be damaging, that becomes the new rule. and then all of a sudden there will become a day when my friends on the other side of the aisle want evidence that they are not getting either. the withholding of documents really matters. if we capital make sound decisions, then this whole institution becomes weaker. second, i want to move to last

thursday's hearing because i think there is also some precedent-shattering decisions that we are making in the wake of what was a stunning performance by a nominee before our committee, before the judiciary committee. first, let me just talk about the lies. i believe dr. ford -- i think she was credible, thoughtful, everything that she said in that hearing seemed to be an effort to try to get to the truth. i frankly don't know whether judge kavanaugh wasn't telling the truth or legitimately doesn't remember what happened because he was so intoxicateed,

but i can set aside the question of whether judge kavanaugh was telling the truth about that particular assault and still have serious, serious concerns about all of the other smaller lies that he told during the testimony. i understand some of the stuff that came up was embarrassing to him, some of these terms and phrases. and yet he was asked the questions, and no matter how embarrassing it was to talk about what boofing is or what a devil's triangle is, he was obligated to tell the truth, and he didn't. he didn't. we have plenty of corroborateing

evidence to -- corroborating evidence to suggest that he and his friends knew exactly what those terms meant, knew exactly what they were referring to with respect to the young woman of which they were part of an alumni club. and i know it sounds trivial to be talking on the senate floor about words and phrases that high school kids were using. the fact that they were using those terms or said certain things when they were kids, that doesn't bother me at all. what bothers me is that a nominee for the supreme court has such a casual association with the truth that he couldn't admit to us what were some embarrassing admissions and instead lie. the precedent of letting a nominee get away with that, even if you don't believe he told the

big lie, even if you only believe that the mistruths were on the smaller things, is another precedent-shattering decision, because all of a sudden we send this message to people who want to apply for the most important jobs in the world that telling the truth is just not that important. now, i get it like the cat is kind of out of the bag, the horse has left the barn, right, the top of the pandora's box is open. we have a president of the united states who doesn't tell the truth every single day. we have a president of the united states who goes onto twitter and just makes up stuff about united states senators. so our biggest problem is not the small mistruths -- the potentially small mistruths of brett kavanaugh. our bigger problem is that we have got a president who

literally can't get through a day without making something up. that sends the worst -- a worse message to our kids than the mistruths of brett kavanaugh. but nonetheless, the supreme court is the supreme court. it's a lifetime appointment. at least if an executive gets into office and starts making stuff up, we can get rid of him or her after four years. not the supreme court. you send somebody up to the supreme court who fibs, that individual is there forever. thus maybe our standard should be a little bit higher. third, i want to talk about judge kavanaugh's disposition in that hearing. and some of the things that he said about how the allegations came forward. i talked about this on the

senate floor i think now to days ago. so i won't repeat it all. but his belief that dr. ford's allegations or miss ramirez's allegations came forward as part of some vast conspiracy led by progressive groups and democratic senators on behalf of hillary and bill clinton is delusional. i understand that -- i understand that politics in this town is rough. we've all been subject to character attacks we think are unfair. but that doesn't mean that there are these vast came boles of people on the left and right

wing spinning tales on a daily basis about each other. what we know is dr. ford brought this forward to her member of congress before brett kavanaugh was even the nominee. what we know is that it got leaked to the press likely by somebody who didn't have an interest in brett kavanaugh as a nominee but not by a democratic senator. what we know is the allegations that followed came out as a consequence of that first allegation. there is zero evidence that there is some grand conspiracy of democrats in league with the clintons to try to bury brett kavanaugh. and further evidence of that is

that if that were our m.o., why did we wait a year and a half to employ it on brett kavanaugh? if democrats' method of operation was to jet up a bunch of false accusations against individuals, make accusations about sexual assault that weren't true just to muddy them up and smear them, why didn't occur to neil gorsuch who frankly engendered much more hostility amongst many of our friends and backers because that was the seat that we believe was stolen from merrick garland. why didn't we jen up those allegations about the president's early nominees to the cabinet who frankly spun up a lot more grassroots anger than brett kavanaugh did in the summer of 2018.

the answer is because this wasn't a conspiracy. this wasn't a whole bunch of democratic senators sitting around. these allegations came out organically. and whether or not you believe they're true, to go before the judiciary committee as a judge and make the allegation that there is a conspiracy, including democratic senators against you when you have no evidence for it, no evidence for it tells us all we need to know about your fitness to serve on the bench. if you are making things up in order to fit the narrative that you think will be most helpful to make your case before the senate, why would we think that you wouldn't do the same thing on the court. which leads me to the most troubling passage of his testimony. and i heard senator lee launch a

defense of it. i've heard others launch a defense of it. but i watched it again before i came down to the senate floor just to make sure that i had it right. at the end of his diatribe against democrats, at the end of this description of a clinton-connected conspiracy that he believes is launched against him. he uses this phrase. he says and i am paraphrasing the beginning of this. he says, as we all know in the political world of the early 2000's, what comes around goes around. now, i listened to it again today just to make sure that wasn't a lead-in to some other thought and it wasn't. he starts a new thought after

that. he starts talking about how he's a generally optimistic guy. the passage about the conspiracy theory and about how badly he's been treated by the democrats ends with a punctuation point right before which is the admonition what comes around goes around. there is little way to read that other than a threat to those that are going to oppose him in the united states senate. and to those political interests groups outside the senate who be working to oppose him. i don't think i'm making too much of this and i know that last night in "the wall street journal", brett kavanaugh wrote a somewhat apologetic op-ed in

which he said that he might have gotten a little bit too heated at times in the hearing. he didn't specifically refer to which statements he would take back but that line what comes around goes around, those allegations about this dangerous democratic-led conspiracy theory, those weren't statements that he just came up with in the heat of the moment. those were statements in his prepared text. those were statements that he wrote down on paper, thought about overnight, thought about again as he listened to dr. ford's testimony, and then read before the judiciary committee. what comes around goes around. how does any petitioner who is aligned with any of the groups

that judge kavanaugh might think was involved in the political opposition to his candidacy have faith that they will get a fair audience before the supreme court when judge kavanaugh is on it? do you really think given how an bring he was, -- angry he was, given what he believes was organized against him that he is going to fairly give causes aligned with democrats a fair shot before the court? do you really think that he now can say that he will be a neutral color umpire as a south justice -- as a supreme court justice? and here's why this is a precedent breaking decision that we are making. in the past we have actually put political people on the supreme court. we have.

centuries ago we elected -- excuse me. we selected people to the supreme court who actually served in political positions. that was at a time when our politics was maybe a little less heated, where there was more opportunity for common ground. but in recent times that has not been the way in which we selected people for the supreme court. we traditionally select jurists. and there has been in the american public this belief that even in a super politically charged time, there are at least nine people who are above all of that, who are above the regular partisan barbs and allegations that we tend to too often throw at each other. those nine people are on the supreme court. and that's really important

because once the american public starts to think that the supreme court is just another political arm, that's the day when the rule of law really starts to fall apart. and that's why nominees to the court are so careful not to unveil any political bias even if they may have one because they don't want to shatter that image that the american public still has by and large, that at least those nine people are immune from the political biases that we hold here in the senate. well, that belief has been forever compromised because judge kavanaugh has told you his political bias. he has told you what he thinks of democrats. and now he is headed for the

supreme court. senator lee spent some time early this evening talking about federalist number 48. senator lee is not the only one who's read the "federalist papers." federalist number 48 is an important one. it's where hamilton lays out the importance of seeing the judiciary different than the legislative body. senator lee got it right. he talks about the judiciary exercising judgment whereas the legislature exercises will. that's a good way to think about the difference between the two.

this is federalist 78. i think i might have said 48. and yet inside federalist 78 is another idea that's really, really important. what he says inside the document is this. hamilton says, i agree that there is no liberty if the power of judging be not separated from the legislative and executive powers, and it proves in the last place that as liberty can have nothing to fear from the judiciary alone but would have everything to fear from its union with either of the other departments. hamilton's saying in that

edition of the "federalist papers" that the judiciary is the weakest of the three branches because it doesn't have the power of the sword as the executive does nor the power of the purse as the legislative branch does. and though he admits that the judiciary can overrule an act of congress and that gives it power , he suggests so long as the executive is independent, is not a tool or a part of the legislative branch or the executive branch, we have nothing to fear. he doesn't lay it out in as explicit terms as i might today, but what he's essentially saying is that the judiciary has to be a political -- as long as it's a political, you have nothing to worry about because it doesn't have some of inherent powers of the branches in article one and

article two. we have broken through that wall in the nomination of brett kavanaugh by making these blatantly partisan allegations by associating himself in his confirmation hearing so clearly with one side of the partisan fight inside the united states congress, he has now brought at least his seat on the supreme court that much closer to one of the two departments that hamilton feared would ultimately become together, become joined. alexander hamilton spent a lot of time writing about the importance of an independent judiciary.

brett kavanaugh by jumping into the political fray, by translating his biases it started to break down that wall. now, i don't want to be overly apocalyptic about this. maybe what i'm suggesting is it just is going to make it a lot easier to put more people on the supreme court who are more political, ultimately continuing to tear down that wall. lastly, mr. president, i want to talk for a moment about the investigation that took place regarding some of these allegations, one of the precedent-shattering decisions that was made was the decision on behalf of the majority to do no work, to try to figure out whether those that were making these allegations were telling

the truth beyond a hastily scheduled hearing in which only two witnesses were called as compared to the anita hill hearings where there were over 20 witnesses called. it was a sham, a process. that's not too strong of a word. there was not an attempt to get to the truth. there was an attempt to provide cover, make it look as if the senate was having a fair hearing. and there was also no intention to do what has been done back during the clarence thomas nomination to have the f.b.i. go out and gather some facts for themselves. it was only because of a last-minute demand by a handful of republican senators that the f.b.i. went out and conducted an investigation but was given only one week to do that investigation. there is reporting in "the new

york times" today that suggests that the white house intentionally limited the scope of that investigation. but, frankly, i didn't need "the new york times" to tell me that that's how this went down. i read the report. and it was very clear in that report that the f.b.i. could do some things and couldn't do other things. this is not me telling you this. i'm referring to independent reporting that only eight people were actually interviewed. and there were clearly some subjects that were off-limits in those interviews, some things that would have been very important for congress to know that we cannot know because those interviews only went so far, and now the "times" is reporting that that was intentional. in fact, the "times" reports

that the president's chief counsel told the president that if there was a full investigation of all of the claims and all potential claims around judge kavanaugh that it would be very bad for his nomination. so i think the f.b.i. can do good work, but not when they are given unfair parameters around their investigation. and that in and of itself is another precedent-shattering decision constraining the f.b.i. when they're trying to go out and gather facts for us. but yet another precedent-shattering decision was the way in which we were allowed to see the report. it was one of the most humiliating things i have ever gone through as a united states senator to sit in a secure room with ten of my other colleagues, with 60 minutes to review a

document, look at it, digest it, ask questions about it. the scene was chaotic. we're sitting there with a bunch of our colleagues trying to share different pieces of the report. i will read that page, you read that page. can i read page six? do you have page seven? oh, boy, we have to get out of here because we only have 60 minutes. it's not becoming of the united states senate, and it didn't have to go down like that. it would have been easy for the senate majority leader to work out an arrangement with the white house to have more than one copy of the f.b.i. report. and of course the senate leadership could have given us more than a half a day to review that report. neither of those things happened and they have consequences because the next time there is a

complication, there is incentive to do the same thing again, to rush a nominee through the process. mr. president, i have with me a statement from a gentleman by the name of keith cogler. this is a statement that comes to the senate from christine blasey ford's lawyers. it is a statement of an individual that the f.b.i. did not interview. this is a friend of dr. ford's who had conversations with dr. ford prior to judge kavanaugh's nomination regarding the allegations of assault that

dr. ford told the committee. one of the things he says here is that he has a copy of an e-mail thread between christine and me in which he made it clear that brett kavanaugh was the judge who assaulted her as a teenager. he says we exchanged those e-mails on june 29, 2018, two days after justice kennedy's retirement announcement before there was a short list for his replacement. he is submitting this to us so we can put it on the record, given the fact it was not included in the f.b.i.'s investigation because they never came and interviewed mr. cogler. and so i would ask at this time, mr. president, unanimous consent that this document that i will submit be entered into the record. the presiding officer: without objection. mr. murphy: thank you, mr. president.

this is just one piece of evidence that none of us saw prior to this moment that would have provided important backup to dr. ford's testimony. i don't know why this person wasn't interviewed who can testify that dr. ford told him of this abuse before judge kavanaugh was placed on any short list. i don't know if the f.b.i. made their own decision not to talk to this individual, whether they were time limited so that they were unable to get to him or whether the white house told them who they could interview and who they couldn't, but this would have been really important information for us to have beforehand. i will -- i will end where i

ended the other day. all of these decisions that have been made i think have long-term consequences for this body. i'm not saying that we can't recover from this. we're all adults. i do believe that everybody here in the senate believes in this place and wants it to be better. i don't run into many people on either side of the aisle who are having a lot of fun these days, given the fact that we can't get along on almost anything except for the budget, which is not insignificant. and so i have to trust as a relatively new entrant to this place that we can do better, that we can try to learn from what has happened here. the damage has been done at this point. the damage to survivors of sexual assaults who are going to be thinking twice about coming forward because they're not going to be believed.

the damage has been done to the precedent surrounding nominations to the judiciary. the damage has been done to the idea of objective truth and the belief that folks that are applying for important jobs should tell the truth. but i have faith that we can learn from what happened here and try to be better the next time, but ultimately what i think about a lot, what i have thought about a lot these last few weeks is why brett kavanaugh? i come back to where i began. at the outset, i said that our standard should be educated by the fact that there is not one person in the world, in the united states who is qualified for this job. there are lots of them. so if you have serious doubts or reservations about an individual, you can move on to the next person. that's what george washington

did when john rutledge was rejected by the senate. he had somebody else who was great in reserve, a great early american, oliver elsworth. there are no doubt other really conservative jurists who would probably fulfill most of the juris prudential aims of the republican majority just as well as brett kavanaugh. it can't be because brett kavanaugh is the essential man. and so given all of these doubts, given all of these allegations, given his precedent-breaking performance before the judiciary committee, why stick with brett kavanaugh? and this is what i come back to when i try to answer that question for myself. i know that it's hard being a republican today.

your party doesn't look like it did ten years ago because you have a president who really doesn't have an ideological core. he doesn't have a set of beliefs. he's a cultive personality. he makes it up as he goes along. it's difficult being a republican in congress today because you're -- because the party is just fundamentally different than it was five years ago. and there is very little that binds together a president without a -- an ideological core and republicans here in the senate who do, right, who do have a set of beliefs that they are fairly regularly consistent about. and i know that's uncomfortable. and so i fear that the reason that the senate republican majority is sticking with brett kavanaugh is because the one thing that you can agree with

this president on is your antipathy for the democratic minority. there is this theme, this phrase on social media that gets used by the right called owning the list. the idea is that you win if you dominate your opponents. you know, it's not winning isn't about passing a bill, winning isn't about doing something good for the country. winning is about owning your political opposition. and i worry that that's what this is about. that we are sticking with brett kavanaugh even with all of these problems and questions that surround him because the worry is to give up on him and to move to somebody else would be a show of weakness, would be

interpreted as a victory for democrats. and the one thing that binds together congressional republicans and this president is an unwillingness to give democrats any perception of victory. now, it wouldn't really be a victory for democrats because we know there would be another conservative justice, maybe one even more conservative than brett kavanaugh who would be coming down the pike. but maybe in the short term, it would be scored that way, and thus it becomes unacceptable. it's sort of the definition of power politics, dominant no matter the cost, no matter the policy implications, no matter the precedents. i might be wrong about this. it may be that my colleagues just feel like brett kavanaugh is telling the truth.

on everything down to the definition of some of those terms, or it may be that they see a talent in him that is unique that the rest of us don't see. but i worry that what matters in this place these days is just winning, and i worry about that for democrats, too. i worry that ultimately what drives us when we get up in the morning in washington, d.c. these days is just beating the other side, that it is just a game, that it is just an athletic contest, that we have become what the news media, what the cable shows want us to be, a shorting event. and i think that of late, my republican colleagues have been