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At This Hour

Senate Judiciary Committee to Take Key Vote on Kavanaugh at 1:30 P.M. Aired 11:30-12p ET

Aired September 28, 2018 - 11:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[11:30:00] SEN. AMY KLOBUCHAR, (D), MINNESOTA: In his own views, in legal writings, that a president should be able to be immune from investigation while sitting in office. That we shouldn't have a special counsel statute. So that's where we start. That's the core here as we look at the constitutional issues that we're facing.

The second reason this isn't normal is that we did not get the information we needed to make a decision. I come from a state that believes in process. In my old job for eight years, I headed up the attorney's office. We handled, by the way, 12,000 juvenile cases every single year, so I saw cases just like the one we heard about yesterday. But in our role, I would always tell people, if we had to let a case go, if we had to make a deal that people didn't like, our role was to be ministers of justice. It was to convict the guilty but also protecting the innocent. And I don't think we protected the innocent very well yesterday. And I certainly don't think that we're doing it today.

There was a lot of chest beating that went on yesterday on the other side. And it was pretty effective, I guess, if the goal was to distract the American public from what they had heard in the morning, to distract and deflect from the moving, powerful testimony we heard. And I don't want to hear about respecting Dr. Ford when we are not giving her the respect of having an investigation of the case that she made to us yesterday. It was a while ago that this happened. And there's other claims out there as well. But it's been my experience, as Senator Whitehouse just articulated, that if you don't go back and look at things and you don't look at corroborating evidence, and you don't talk to the witnesses, you're never going to know what happened.

I have proposed and talked to some of my colleagues, and I know others have as well. There's a finite period for an FBI investigation. Maybe a week. George H.W. Bush ordered that in the Anita Hill case, a three-day investigation. That happened. Whether people like that outcome or not, it happened. That is not even happening here. We are not even giving Dr. Ford the respect of having that investigation. And that is wrong. That is not being ministers of justice.

This was a woman with no political background who made an attempt to call the front office of her congresswoman. That's what she did. She did this before the nominee was even picked. She did it when the nominee was on a short list because she was concerned. That's what she did. So don't argue that she is part of some massive political strategy. Those aren't the facts. And, yes, it's messy. The justice system is messy. Things come in at

the last minute. It happens all the time. It happens before a trial. It happens before a hearing. And the question is not if it's messy. Senator Flake himself said yesterday, this is not a good process, but it's all we've got. The question is, what do you do when it happens? When you're in a position of power, what do you do when it happens? You may not like how this came in at the last minute. I would have liked to have known about it earlier, too, but I didn't. The question is, what do you do when it happens? And when it happens, you don't just put it under the rug. For so many years, this is what happened to claims like this. They were just swept under the rug. What happened in the House, no matter how bad it was, didn't belong in the courthouse. And that hurt women, and that hurt children for a long, long time. But the times are changing now.

We have someone who made a credible claim. The chairman even thanked her for her bravery. Where is the bravery in this room? This rush, when in fact, we could have a finite period of time to interview a finite period of witnesses. Someone who she alleges was in the very room where it happened. We are not able to even cross-examine them, ask them questions. We're not allowing the FBI to go in there and tell them to his face that you're going to get in criminal trouble if you don't answer these questions correctly. Instead, we get a letter behind the veil of a law firm. That's not the same thing.

[11:35:07] We have a polygraph expert. Yesterday, I put that polygraph exam on the record. People were bristling over there and said, well, we want to see the charts. We would be happy to have the polygraph expert testify and explain how this was verified. And, yes, as Judge Kavanaugh pointed out, this is not a test that is admissible in court. But guess what? We use it for job interviews. We use it for the FBI. We use it for the Defense Department. We use it for the CIA. And the nominee himself has even said that this is useful to use for those purposes in a case that he decided in 2016. Those are the kind of witnesses we could hear from if we had the opportunity. Maybe one week to do it.

So I look at it this way. If we want to show Dr. Ford respect, we give her the respect of having her case heard and the evidence looked at. I look at it as, what are you hiding? What would it hurt? If Judge Kavanaugh is so sure that he has this corroborating evidence and what this calendar means and what these things mean, then what is he afraid of if we just spend one week looking at the evidence?

What I have heard today just adds to this. When I heard his sanctimonious talk about some kind of political strategy, well, I'll give you exhibit A, Merrick Garland, who was delayed for nearly 10 months. You talk about a nominee getting off the floor when all we're asking for is one week for an investigation, and you kept Merrick Garland away from this committee for 10 months? That's not even a comparison.

That was a strategy yesterday. And, boy, was it a strategy. And I sure hope that some of the Senators who have not yet made a decision, who are not on this committee, will look at the evidence and look at what happened and see it for the strategy that it was. I asked Dr. Ford yesterday about what she remembers from that night.

And I also asked her what she couldn't forget. And here's what she said. "The stairwell, the living room, the bedroom, the bed on the right side of the room, the bathroom in close proximity, the laughter, the uproarious laughter. The multiple attempts to escape and the final ability to do so."

We heard her talk about how she had a civic duty to bring this up. We heard her testify about how she had actually brought this up six years before to a counselor. About how her husband recalls her using the judge's name.

In the rules of evidence, it says that statements made to a professional, to a medical professional, are considered to be credible. In cases when you compare evidence, you look at people's -- what their goals are. What would be their reasons to lie? And I look at, you have on one hand a judge who has a career-making moment to get on the United States Supreme Court. And by the way, no one is entitled to be on the United States Supreme Court. And then you have a woman who tried to keep this confidential, who came forward, sent a letter, tried to do what she could to keep her name out of the news. And finally, when the reporters showed up at her door, she came forward. I just see these as different. When you look at the rules of evidence, when you look at credibility, the fact that she had mentioned this years before means a lot. But you could have doubters. I understand that. But when we don't have an investigation, and we don't have things in writing to be able to look at the facts, where are we?

I have been on this committee for a number of years. And I have been briefed on FBI background checks. And a number of times -- and my colleagues know this -- nominees withdraw because of what is in those background checks. They pull their names out. The press never knows it. But it happens. Or sometimes we're presented with some information that's not public, and we have to make a decision, well, does this drug use amount to something that should keep this person off the bench. Does looking at this Web site amount to keeping this person off the bench? These are things we have actually considered. That's the kind of information we get from those background checks. And I think it's a good thing because not everyone needs to be dragged through the mud. Things are contained in a background check.

[11:40:00] SEN. CHUCK GRASSLEY, (R-IA), CHAIRMAN, SENATE JUDICIARY COMMITTEE: May we have order?

(CROSSTALK)

KLOBUCHAR: Those background checks are useful for us, and they're useful for the American people. I, for one, don't want to live in an evidence-free zone. We need this information.

I would submit to my friends across the aisle, that this is not a "he said/she said." This is a "he said/they said." There are a number of people out there who have talked about the fact, including the nominee's roommate, that he is belligerent when he gets drunk. Yes, that was a long time ago. Maybe he doesn't do that anymore. And I know people in high school drink a lot and in college. But when I asked him about this, to try to get to the facts -- I'm not an FBI agent -- but all I was trying to do is figure out, well, maybe he has partial memory loss when he gets that drunk, or maybe he blacks out. I don't know. I was trying to get that. What did I get in response? A question of if I black out. Did he apologize? He did. And I appreciated that. But the point is, if we could have the FBI, like we do with all background checks, interview these witnesses, we could get to the bottom of the facts.

Judge Kavanaugh said on FOX News and yesterday that he wants a fair process. That's what he said he wants. And when I asked the judge why he wouldn't ask the president to have the FBI reopen the investigation yesterday, he didn't make that request, he didn't really answer that question. There are only a few people in America right now that can reopen that investigation. The one sitting across the room, because, yes, Senator Grassley could have held off this vote until we had that investigation. Judge Kavanaugh could have easily said, Mr. President, for this to move forward, I want to at least clear my name, but mostly, I want to have the American people know whether or not this is true or not. He could have done that. Why didn't he do it? Because they're afraid of what they'll find out.

Yesterday, the American Bar Association, as Senator Durbin has just noted, and read the letter, sent a letter urging the committee not to vote on Judge Kavanaugh's nomination until the FBI has conducted appropriate follow-up. The ABA said that it made that request because of its, quote, "respect for the rule of law and due process under law."

Just waiting until the staff is done talking over there.

The ABA said it made the request because of its "respect for the rule of law and due process under the law."

I chose to get on this committee -- I didn't get on it right away because I had done this work for eight years before I got on here. I got on here two years after I got to the Senate because I decided I wanted to continue that work, to uphold the respect for the rule of law and due process under the law. But that's not what I saw yesterday. So if this committee isn't going to respect the law, and if we go to the floor and the same thing happens again, I would remind my colleagues that the Constitution does not say, "We the ruling party." The Constitution says, "We the people." And if the people of this country want to have a check and balance in the Supreme Court, a check and balance on this administration, if they want to have a fair process, they're the only ones left to pitch in here. They're the only ones left to have a say. Because right now, the way this process is run, we're not running it like "we the people." It's being run like "we the ruling party." I vote no.

GRASSLEY: Senator Cruz?

We hear about fair and open and thorough and everything that I just heard. We've heard inference of a political strategy on this side of the aisle, not to be fair and thorough. I have seared in the back of my mind something that was said soon after July 9th that Senator Schumer said that tells me about a political strategy that has carried on here, the way it has to delay and delay and delay and delay, because he said, "I'm going to fight Judge Kavanaugh's nomination with everything I've got." And it seems like that has happened over the last 90 days.

Senator?

[11:45:09] SEN. TED CRUZ, (R), TEXAS: Thank you, Mr. Chairman.

We're living in a divided time. This country is divided right down the middle. There's an enormous amount of anger. There's rage. There's hatred. We see demonstrators screaming at each other, reflecting that rage, reflecting that anger. And I know there are a great many Americans who wish we could and believe we can get back to an environment where we treat each other with civility and decency. Get back to an environment where, yes, we have policy disagreements. We disagree on what the right legislation is to pass. And we even have vigorous debates about what the right policy is. But we do so in a context that respects each other. That doesn't demean the humanity of each other. That doesn't attack the character and drag people through the mud.

The politics of personal destruction that we have seen on display in recent days is Washington, D.C., at its very ugliest. And all of us should remember that we're talking about real human beings here. These aren't pawns in a chess board. These are real people.

Dr. Ford has been through hell. The last two weeks, I have no doubt, have been extraordinarily painful for her, for her family. The testimony she gave yesterday was powerful. It was clearly heart wrenching. It was clear she was hurting and hurting mightily. Having her name made public against her wishes and dragged through the mud was a hurtful thing to do. The wrong thing to do.

And Judge Kavanaugh, he, too, has been dragged through the mud for the last two weeks in a way that has no precedent. In our polarized society we live in today, it's almost tribalized, where half of us wear one team's jersey, the other half wear the other team's jersey, and everything we see we see through the lens of our jersey. So it would not surprise me if across the country a significant percentage of those on the Democratic side of the aisle saw yesterday's testimony and concluded he must be guilty. And it would not surprise me if a very significant percentage of those on the Republican side of the aisle saw yesterday's testimony, the same testimony, and concluded he must be innocent.

One of the consequences of that, you know, Judge Kavanaugh talked about how these smears and the many that have been leveled against him in the last two weeks, how they have, as he put it, destroyed his family. To some, that may sound like hyperbole. I don't think it is. Judge Kavanaugh has two young daughters, a 10-year-old and a 13-year- old. For the rest of their lives, their daughters will go to school, will interact with people, many of whom are convinced their father is a rapist. I want you to think of the effect it has when those are the allegations. That's where it starts. Not I disagree with your jurisprudence. Not I think you're wrong in how you interpret the Constitution. But you are -- and let's be clear, he's been accused of, among other things, participating in repeatedly drugging and gang- raping women, to take some of the more sensational, I think, ludicrous claims that have been aired. These little girls are going to have classmates of theirs repeat those charges to them.

Some of the most poignant testimony yesterday was when Judge Kavanaugh described how he's taught law at Harvard Law School for over a decade. And he said he may never get to teach law again. And that's entirely possible, even if Judge Kavanaugh is confirmed to the U.S. Supreme Court as a sitting justice, in our polarized world. I'm a graduate of the Harvard Law School. And I think it is entirely possible those on the left, they say, we don't want someone we think is a rapist ever teaching again. He also talked about how much he has loved coaching girls' basketball, coaching his daughters in basketball. He mentioned he may never coach again. That's a very real possible consequence of the mudslinging and irresponsible behavior of the last two weeks. It may well be in this tribalized partisan divided world that the parents of the other girls say, no, we don't want him as a coach anymore. Our words and actions have consequences.

[11:50:53] That being said, even though this is a divided time, even though this is a partisan time, I have faith in the American people. I have faith in the American people that we want to be fair-minded. We want to actually assess the facts. We want to actually assess what happens.

I think it's important that once the allegations game public that Dr. Ford was given a full and fair opportunity to tell her story. I emphatically urged my colleagues that was the right thing to do, to give her the opportunity to testify in public. And it was important that when she testified, she be given an environment that was fair and respectful, that she not be demeaned, that she not be attacked, and she wasn't. That was the right thing to do. The committee -- once this had been forced to the front pages of the paper, the right thing to do was give her a public forum and a full public forum to tell her story.

But the right thing also requires, and we saw yesterday, Judge Kavanaugh being given a full and fair opportunity to defend himself. The American people watched that testimony.

And you come away with a number of conclusions. Number one, it is clear their testimony is in direct conflict. What they said is directly conflicting. Judge Kavanaugh categorically and unequivocally denied the allegations.

So the question is, how do you resolve that discrepancy? How does this committee, how does the United States Senate, how do the American people resolve the discrepancies when you have two witnesses that testify to things diametrically opposed? The only way I know to do it, and this is how a court of law operates and how most reasonable people operate, is when you have conflicting testimony, you look to, well, what does the rest of the evidence demonstrate? What other evidence is there and what does the evidence demonstrate? Dr. Ford named three fact witnesses who she says were there and could corroborate her story. None of the three corroborates her story. Not only did they not corroborate her story, all three of the named fact witnesses explicitly refuted her story, and they did so under penalty of perjury. They didn't do so lightly. They didn't just say it. They did so that, in a context that under the United States code, they can face up to five years in prison if they lied to this committee. So every fact witness that Dr. Ford named has explicitly disputed her allegations.

Now, one of those fact witnesses was Mr. Judge. We've heard a lot of discussions about Mr. Judge. A lot of my colleagues saying, why didn't we hear testimony from Mr. Judge? Well, Mr. Judge refused to talk to the committee. He submitted a statement, a statement under penalty of perjury, under penalty ever felony, but he refused to be interviewed by investigators. It's not complicated to understand why. Public record indicates Mr. Judge has had a very troubled life, that he has battled with addiction for most of his life. We heard testimony yesterday that he had been near death, that he battles with depression, that he's a cancer survivor. He has also been directly accused of multiple felonies. So when committee investigators asked to interview him, he said no. That shouldn't surprise anybody.

We had a vote earlier today on subpoenaing Mr. Judge. It's not complicated what would happen if he were subpoenaed. If he came before this committee, any defense lawyer worth his salt would tell Mr. Judge not to testify.

[11:55:07] Now, I understand, politically, the Democratic members of this Senate would very much like to see a man who struggled with addiction most of his life sitting before this committee and pleading the Fifth. That would make great theatrics. That would make great political theatrics. It wouldn't help one iota in the search for the truth. But it would make a great public show.

I will say, of the three fact witnesses, the one who I think is most revealing is Leland Keyser. Ms. Keyser was close friends with Dr. Ford. Ms. Keyser had every incentive to back up her story. Instead, Ms. Keyser, under penalty of perjury, said she doesn't know Judge Kavanaugh and has no recollection of any party like the one Dr. Ford describes. Dr. Ford testified yesterday that Ms. Keyser texted her after submitting that statement to say she was sorry, sorry for not backing up her story. I think that indicates powerfully that her incentives, if at all possible, were to back up the story, and yet, she didn't feel she could. She had no incentive, no motive to lie. Every incentive to agree with Dr. Ford's story, and yet, she did not do so. All three fact witnesses have explicitly disputed the allegations.

What other evidence do we have? We have Judge Kavanaugh's calendars, detailed day to day. I have to admit, when the calendars were first released, there were press stories about them. I didn't find that terribly persuasive evidence. Until Judge Kavanaugh walked through day by day, each of the possible days when this was alleged to have happened, and walked through the specific conflicts, how he was out of town for many of the days, how he had conflicts for many of the days. The notion of his calendars were almost like diaries. Frankly, I think it's kind of odd. That's not something many people do, but it appears to be something both he and his father do. That contemporaneous evidence that he kept in 1982, I will tell you, in a court of law, that kind of contemporaneous evidence would be powerful. If you are trying to ascertain two conflicting witness and which one is telling the truth, you would look for contemporaneous evidence one way or the other.

And finally, we know Judge Kavanaugh's impeccable record of decades of public service. He's 53 years old, and prior to two weeks ago, there had been no allegations whatsoever of this kind. Six background checks, and detailed, thorough FBI background checks, and nobody raised any claim like this. Now, all of us know from human experience that if someone is a sexual predator, if someone is committing the kind of actions that have been alleged, that it is very rare that they are a one-time offender. That if someone is carrying out this kind of conduct, they typically have a pattern of doing so over and over and over again. We have seen powerful men throughout society, in politics and journalism and Hollywood, whose careers have rightly been ended, but they've been ended for a pattern of harassment or abuse that typically extends decades. Because when someone behaves like this, they behave like this over and over again. There's no credible indication that that's occurred. Indeed, it's striking that in his 12 years as an appellate judge, a majority of his law clerks have been women. That is exceptionally unusual. I don't know of another federal appellate judge for whom that is the case. And I can tell you his law clerks revere him. They hold him in the very highest of respect. His reputation, Judge Kavanaugh's reputation in this town is of being a Boy Scout, is of being a boring Boy Scout. That has been his reputation for a long time.

Now, some might say, well, gosh, in the press, there have been these other sensational allegations. We've seen others that have popped up after this one. Well, I thought it was striking in yesterday's hearing that not a single Democratic member of this committee chose to ask about any of the other allegations. That indicates how little credibility there is behind those allegations. The one that is the most sensations, by the client of Mr. Avenatti, makes extraordinary claims, which apparently our Democratic colleagues are embarrassed to say publicly because they demonstrate that this has become a partisan circus. This is not about substance. This is about smears.

[12:00:11] GRASSLEY: Can I ask the Senator if he can sum up?