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Senate Judiciary Committee Hearing. Aired 12-12:30p ET

Aired September 28, 2018 - 12:00   ET


[12:00:00] SEN. TED CRUZ (R), ARIZONA: Colleagues are embarrassed to say publicly because they demonstrate this has become a partisan circus. This is not about substance. This is about smears.

SEN. CHUCK GRASSLEY (R), CHAIRMAN, JUDICIARY COMMITTEE: Can -- can I ask the senator if he could sum up.

The reason I've done that is because I -- I'd like give everybody a chance to speak.

CRUZ: This committee has given Dr. Ford and Judge Kavanaugh a full and fair opportunity to lay out their views. And I will say, unfortunately, the conduct of our Democratic colleagues it's been clear that this has been all about politics, all about delaying this confirmation until after the election, hoping that they win the Senate in the election and then keeping this Supreme Court seat vacant until 2021. Every Democratic member of this committee, before the confirmation hearing started, said they opposed Judge Kavanaugh. Before a single thing started.

And not only that, this allegation, the ranking member of this committee had it in writing on July 30th. If on July 30th that had been reported to the committee chairman, this committee has a process to investigate it. A process to investigate it that is confidential, that the FBI could have participated in investigating starting back on July 30th. That we could have had a hearing that is closed, that is not dragging either of these individuals through the mud. That's the way this process should have worked.

And the testimony yesterday from Dr. Ford is that the only people who had copies of the letter were herself, her lawyers, Representative Eshoo and the ranking members of this committee. Dr. Ford further testified that neither she nor her lawyers handed the letter over. That leaves the only conclusion possible is that the letter was leaked to the public by either of the two Democratic members of Congress or their staff or someone else to whom they gave it. If there are only four people that have it and two did not give it, then the other two are the only possible sources.

And that, unfortunately, demonstrates a cynicism, a willingness to smear Dr. Ford if it helps politically delay this nomination. I think we have an obligation to be fair, to be impartial, to listen to the evidence, to weigh the evidence. That's the right thing to do. And that's what I hope this committee does and that's what I hope the full Senate does.

GRASSLEY: Senator Coons.

SEN. CHRIS COONS (D), DELAWARE: Thank you, Mr. Chairman.

Yesterday was an important and a difficult day. A long day for Dr. Ford, for Judge Kavanaugh, for the Senate Judiciary Committee, for our nation. And I will say briefly at the outset that before yesterday began, I prayed. I prayed for Dr. Ford and her family. I prayed for Judge Kavanaugh. I prayed for our chairman and ranking member. I prayed for our president. I prayed for all who would watch yesterday who were victims of sexual assault, and I prayed for all who would watch yesterday, uncertain whether we could conduct ourselves respectfully. And I must say, after everything I have heard, I am struck that in the Twitter-fueled, smash mouth politics of our day, we must ask ourselves, what about our conduct? What about our conduct here would encourage anyone to come forward with credible allegations of sexual assault, to seek a nomination to a federal court or other position of trust, or to serve here? And, as a result, I tonight will pray for our nation.

The burden on this committee was to address, investigate, and resolve reasonable doubts as to credible allegations against the nominee before them. And by that test, this committee has failed.

I know we have heard strong words about many of our colleagues. And my predecessor, long serving senator and former chairman of this committee, Joe Biden, has been quoted by many, and I would say misquoted at times. But I want to share one quote, one thing he said to me when I began my service here, which was, it is always appropriate to question another senator's policies. It is always appropriate to question another senator's priorities. But it is never appropriate to question another senator's motives. And there has been far too much of that, that's happened in this process, in a way that, frankly, will make it very difficult for us to take off our partisan jerseys and at some point get back to the important work of finding solutions to the real challenges facing this country.

[12:05:03] What I have been searching for in this process is the facts. And I recognize many of my colleagues on the other side do not see it that way. Many of you have questions the timing of when this allegation surfaced and you have also said there are not enough facts corroborating Dr. Ford's testimony to ruin a good man. I strongly disagree with both of these points and want to explain briefly why.

The first time I learned of Dr. Ford's allegations that Judge Kavanaugh had sexually assaulted her was on September 12th. Ranking Member Feinstein disclosed this highly sensitive information to myself and other Democrats on this committee only after reporters had learned of the letter Dr. Ford had provided her congresswoman. I don't know how this information leaked. I regret that it did. The decision whether to come forward should have been Dr. Ford's and Dr. Ford's alone. And I cannot rule out that the person who leaked this information had a partisan agenda. But I am certain Ranking Member Feinstein and her staff did not disclose Dr. Ford's account prior to that date because it was not theirs to share. And I think it's regrettable that long-serving, honorable colleagues of hers have questioned her motives.

I know since the day that my Democratic colleagues and I learned of these allegations, we've had one consistent request, to allow the FBI to investigate them in a nonpartisan, professional, even handed manner and deliver their findings to us so that we could reach a conclusion. That same night, Ranking Member Feinstein sent a letter requesting such an investigation. To suggest that Senate staff interviews or letters from lawyers are an adequate substitute for a robust, FBI fact gathering process that we might then weigh is not credible and reflects, sadly, a willful blindness to the dysfunction of our institution.

To my colleagues across the aisle, you know me. You know I try to be fair to nominees that come before us and I respect this process and the humanity of those -- even those with whom I passionately disagree. If I were convinced this were nothing more than a partisan hit job designed to take down a good man and hold a position vacant past the election, I would not stand for it.

An investigation would be helpful because Dr. Ford's recollection shared with us so powerfully yesterday of her assault were searing, but incomplete. Dr. Ford testified credibly about painful memories she's carried with her to this day. The feeling of a hand clasped over her mouth and her not being able to breathe. The sound of laughter while she was pinned on a bed. The weight of a body on top of her, groping her, and the feeling of relief fleeing the house.

Dr. Ford testified with 100 percent certainty that the person who assaulted her was Brett Kavanaugh, whom she knew through multiple acquaintances and had socialized with on multiple acquaintances. But it is true, as has been widely repeated, that Dr. Ford cannot pinpoint the date or the time of the assault, the exact location, and that she did not tell anyone about that assault at that time. There is not an eyewitness who has been able to provide the details of this.

All of which is typical of sexual assault. Many experts have written how common it is for assault survivors to remember some facts with searing clarity but not others, which has to do with the survival mode that turns on when we experience trauma. The vast majority of sexual assault victims delay disclosing what happened to them or never disclose at all. One of the most striking things about this hearing for me has been the so far five, five personal friends, acquaintances, people I've known for years or decades who have conveyed to me their experiences of sexual assault on this phone while this testimony was going on. That suggests that there is an ocean of pain in this nation not yet fully heard, not yet fully addressed, not yet appropriately resolved. And I, for one, will not countenance the refrain said by too many in response to these allegations by Dr. Ford, that it happened too long ago and that in our nation, boys will be boys. We must do better than that and we must set a better standard than that for our own families and for our future.

I worry sincerely about the message we are sending to assault survivors if we plow ahead with this nomination despite the seriousness of the allegations. And I have conveyed to my friends and colleagues that I had wished we would take a one-week pause. One week only. Not to spread this out past the next election, not to pursue some partisan goal, but to allow a professional FBI interview with everyone who may have relevant information starting, yes, with Mark Judge, who, obviously given the vote of this committee this morning, will not be subpoenaed to appear before us.

[12:10:06] I'll remind you briefly that many of those who came forward to support Judge Kavanaugh, including my own professor from Yale Law School, Akhil Amar, and an organization I've long belonged to, the American Bar Association, have spoken up to also request a thorough and professional background investigation.

I think to ask for a week is not to ask for too much. When Professor Anita Hill came forward, the White House cooperated and in four days, in four days, a hearing was put together with 22 witnesses. I think that's what Dr. Ford deserves. I think that's what her bravely deserves. And I think that's what our nation deserves.

I will not go through a long point by point refutation of what we've just heard from some of my colleagues, by let me simply say a few things about Dr. Ford's testimony.

As I've said, she bore the pain of this attack alone for far too long, but her memories did not stay hers alone. Dr. Ford told her now husband in 2002. She told therapists in 2012 and 2013. She told friends in 2013, 2016, 2017, 2018 and has submitted testimony about all of that to this committee.

Dr. Ford, when she came forward yesterday, had nothing to gain and a lot to lose. She came forward to testify about her experience of assault, and I'm going to use her words, she said, I'm here today, not because I want to be. I am terrified. I'm here because I believe it is my civic duty to tell you what happened to me while Brett Kavanaugh and I were in high school. Civic duty, to tell the truth. What has always struck me is that Dr. Ford came forward to voice concerns about Judge Kavanaugh before he was nominated. She reached out to her congresswoman anonymously and to "The Washington Post" tip line as well when Judge Kavanaugh's name was on the president's short list. She was not lying in wait for an opportune time to make a big reveal to sink a nominee. Rather she had wanted this information to get to the president before he made his selection so the president could pick someone else. I wish he had.

Judge Kavanaugh yesterday unequivocally denied the allegations against him, but something he said repeatedly, importantly, was not accurate. Over and over again he testified -- and we have just heard it repeated here today -- that Dr. Ford's account was refuted by three individuals Dr. Ford identified as being present. That's not the case and Judge Kavanaugh knows it. Not recalling is not the same as refuting. Their statements issued through lawyers say they don't remember the gathering. Of course none of these three people were assaulted that night. For two of them, it would have been an unremarkable evening. Just another casual summer among friends. And Leland Kaiser (ph) says that she believes Dr. Ford's account. A fact not acknowledged by my colleagues or Judge Kavanaugh.

I'll also say that, in my view, the failure of this committee to subpoena Mark Judge, whom Dr. Ford identified as a witness and participant in her attack, is a failure in this committee's effort to get to the truth. We also have to face the reality there are additional, serious allegations brought in sworn statements by Ms. Ramirez and Ms. Swetnick, who have both asked for an FBI investigation into their claims. Their claims have varying credibility, but deserve to be heard.

I wish Judge Kavanaugh would have pointedly supported a short pause for an FBI investigation for the benefit of clearing his own name. But I'll say, as I conclude, there is something much greater in my mind at stake. The fact that Judge Kavanaugh is nominated to the Supreme Court means this is not just about his credibility and the remaining concerns about his credibility that I will carry forward. It's about the court's legitimacy. We're left with the reality that if his nomination goes forward this morning after testimony full of rage and partisanship and vitriol, but without even a brief pause for a nonpartisan investigation into the serious allegations presented, his service may well have an asterisk. Litigants coming to the court will have reason to question the fairness of the institution. And, in my view, that is too great a cost to impose on our system of justice in exchange for any one man.

It is my hope that my colleagues, those who have not yet decided or declared their decision, will still join in a request to allow the FBI to do its important work and for this committee to allow itself the time to get to the bottom of the remaining allegations. Given the vote this morning, I know that is highly unlikely. I initially announced my opposition to Judge Kavanaugh after our previous rounds of hearings had concluded. Those hearings began without a declared position by many of my colleagues on this side.

[12:15:10] In the end, for me, it was Judge Kavanaugh's extreme views on presidential power that I engaged with him vigorously on and that I believe I engaged with him respectfully on that determined my vote on him.

But for us to proceed today, without giving the thoughtful, serious, and thorough investigation of credible allegations before us is for this committee to fail to do its job. I pray that after today we may yet find a way to work together because our community, our country, and our world deserves no less.

Thank you.

GRASSLEY: I'm going to ask my colleagues on this side of the aisle if -- and I'm not going to ask the Democrats to do this -- but could we kind of -- I've only interrupted Senator Cruz. Could we kind of make sure that we keep our remarks a little short so everybody can speak?

Senator Kennedy.

OK, I guess -- I guess I'm wrong.

Senator Crapo.

SEN. MIKE CRAPO (R), IDAHO: Thank you, Mr. Chairman. And I will do that.

I just wanted to respond first to a number of the comments that have been made about, again, needing the FBI investigation and what the -- the dynamic of what this committee has done is. It's been said that this committee has changed its procedure. This is the first time that it's conducted its business in this way.

Again, as I said yesterday, I think that needs to be clarified and corrected. The fact is that when the FBI does its background investigation, it does just that, a background investigation. It talks to people who may have information about the nominee. And takes a statement from them. And then delivers its package of investigative information to the White House, which passes it on to the committee. Which is the report that this committee receives from the FBI.

It's been said that President Bush reopened the FBI investigation when the Anita Hill information came out. My understanding is, and if I'm wrong on this, Mr. Chairman, please correct me. But my understanding is that when you, as the chairman, finally found out about the information, that that information also went to the FBI. Perhaps it was the ranking member who gave the information -- the letter to the FBI, but the FBI was given the information.

Is that correct?

GRASSLEY: That is correct. And they said to the White House, in the usual way they do, that they considered it closed.

CRAPO: So the two points there. First of all, the full letter, unredacted, was given to the FBI and the FBI did what it does -- you know, I don't know exactly what they did in the Anita Hill case, did exactly what it usually does, which is to reopen it, if you will, evaluate the letter. And then again, I understand that the FBI then closed it and sent the information to the White House, as they did with the previous report before this allegation came up.

Is that correct, Mr. Chairman?

GRASSLEY: The only thing I can verify is that the -- that the FBI did what you -- you -- they would usually do and that they -- they then -- and I don't know what that was. And they probably would keep their own internal stuff to themselves, but they sent a cover letter to the White House saying the issue was closed.

CRAPO: So the FBI did look at this. The FBI did whatever it does in its background check activities and then resent an updated amount of information to the White House, which the White House then forwarded to us. And then the process, which has traditionally been followed in this committee, was followed again.

And I believe that immediately the chairman opened up an investigation by this committee. That also is customary practice and as has been stated yesterday, but I will restate again, our committee investigative staff, which is extensive and well trained, has legal authorities similar to the types that FBI agents do such that when they conduct their investigations, the people who are interviewed and those who are reached out to by the committee are under penalty of a felony that could result in five years imprisonment if they don't respond honestly and correctly to the questions.

Every one of the witnesses that was identified has been reached out to. Now, some comments have been, well, they didn't actually submit themselves to a deposition or to some kind of a court process or something like that. As is already been very well explained by some of our other colleagues, when a witness is -- refuses to testify, the alternative is to try to get a statement from them, which the FBI does, or the committee does. In this case, statements under penalty of felony were obtained from all of the witnesses.

[12:20:23] So I think the argument here that there was some process followed that was not fair is simply inaccurate. The argument that the process followed was not the same as the committee has followed in the past is also inaccurate. And I think that's very critical.

Now, to turn to the issue at hand, yesterday we received hours and hours of testimony from two witnesses. And both of them, frankly, made very strong cases. This committee is under the need to evaluate the testimony that was given and determine how it will judge or rule on our require -- on the obligation this committee has to give advice and consent. In this context, I came away believing that there had, in fact, been a sexual assault in Dr. Ford's past.

As has been stated, it was not entirely clear when, where, and all of the circumstances, but there's no doubt in my mind that she truthfully testified that she had had a sexual assault, had been assaulted sexually in her past.

I have to say, I also listened very carefully to Judge Kavanaugh as he testified. And I felt that the testimony he gave was also honest. He gave, I thought, very strong testimony that he was not there.

And so I think that -- that this committee has to face the difficult task of what burden of proof does it apply? What standard does it apply in exercising the advice and consent that it gives? And that's a -- that's a very difficult thing that each one of us individually needs to face and deal with.

As I've -- as I've said, I don't feel that the evidence shows that Judge Kavanaugh was there that night. I believed his testimony. I believed Dr. Ford's testimony about the sexual assault. And, because of that, I will vote yes today to move the nomination forward to the floor.

GRASSLEY: Senator Booker.

SEN. CORY BOOKER (D), NEW JERSEY: Mr. Chairman, this has been obviously my first process, my first time through a Supreme Court nomination process. I fought for years to be on this committee. It's the one I wanted to be on as soon as I got to the United States Senate in 2013. I made you aware of that, sir, and the ranking member. And it has been an incredible experience, a lifetime dream to be a part of this committee. And, sir, I have a lot of respect for you. Some people have even -- on

my side of the aisle have even criticized me for the affection with which I have for you, sir. You have been a partner.

And there's something about the (INAUDIBLE) most senior members of this committee, you all, Senator Hatch, yourself, Senator Grassley, Senator Leahy, Senator Feinstein, in many ways you all have been anchors in this entire institution, to a time where the comedy was deeper and greater, and have resisted, in many ways, that I find admirable, the drift towards tribalism within our country and within this (INAUDIBLE institution.

When a Supreme Court vacancy happened, I was one of those individuals that did not wait long before I announced my intentions to vote against Judge Kavanaugh. And, sir, I did it for sincerely and deeply held beliefs. I did it because I felt that this was a person that had made it clear in that entire list of people prepared by the Federalist Society and the Heritage Foundation that this was a guy that spoke directly towards a view of presidential power, presidential immunities, that in this perilous time where a president is a subject of a criminal investigation, that he was going to protect that president, and said as much. Make sure that the president was above the law in accountability.

[12:25:00] And, sir, I've learned a lot. I'm one of the guys that on this side of the aisle, when my colleagues speak on the other side of the aisle, I listen. I try to give them my full attention. And I don't always agree, but I -- I've learned a lot from my colleagues. And my friendships on the other side of the aisle, my sincere friendships, there's been times during these hearings I've texted back and forth with people on the other side of the aisle. I respect them.

And I fought hard during this process. I've given it everything I've got. I've learned that going back to being a football player that between the whistles you fight as hard as you can for what you believe.

And if you want to call that partisanship, fine. I've been exuberant in my beliefs. And I've learned a lot through this process. Some of my comments have been referenced numerous times and I know that -- I know that I have not been as precise and allowed my comments to be mischaracterized. And I don't blame those people who are mischaracterizing my comments. I take responsibility and have learned to be more precise. And I've talked to these issues and I talked to my values as much as I can.

I travel around this country calling for (INAUDIBLE), calling for us respecting, seeing the dignity of Republicans and Democrats and recognizing as much as I can. And I say it, patriotism is love of country. And you can't love your country unless you love all your country men and women.

The goodness and the decency of Republicans and Democrats in this country is self-evident. And we demonize each other in ways that I will be and continue to be an exemplar of trying to get our dialogue to rise to something different, to be a country that sees that we need each other, that there's no Democratic or Republican way to success. There's only an American way.

And, sir, you know, and I hope, and I've said this to you personally, and I think I've said it enough publicly, that in the hardness with which I fight, I mean you no personal insult, but I did say before, and I say now, before Dr. Ford's charges came up, I say very sincerely that I think that the way this process was run was a sham. I used that word, sir. And it was because we were evaluating someone for the highest court in the land with seeing such a small part of his relevant work product.

I didn't understand how so much of his writing, approximately 90 percent of his relevant work product was not even being seen by this committee and controlled by a process that was so broken, so partisan. And then, sir, I violated the rules that you put forward in this committee, willfully and knowingly and accepting the consequences of that. And I did so because the documents that were being withheld from the public, I felt the public had a right to know. And they weren't classified. There was no national security issues. And, gosh, we disagreed on that, sir. And I locked horns with people across the aisle. And even after all of that, I was grateful for the comedy. The gentleman I knocked horns with most said to me, you know what, I was taught to hate the sin but love the sinner.

I really love being on this committee. I love it. From living in Newark, New Jersey, this is where I wanted to be, sir. I wanted to be on a committee that dealt with issues of justice in this country because I feel that when we swear an oath to liberty and justice for all, I don't think we're there yet as a country.

And I have to say now as I'm sitting here that I deeply resent this idea that somehow when Dr. Ford came forward, that this dealt with partisanship. This is -- this has shifted this debate in this committee and in this country from raw partisanship to something much deeper. I have such respect for the ranking member. And I was in the room when we discussed literally hours after I was made aware that the letter existed about what her motivations were. It was a private room. And forgive me for speaking out of turn, if the ranking member believes I am, but her entire sense of decency and honor had nothing to do with politics. Politics was not mentioned. Her entire concerns were about the dignity and the humanity and the respect for Dr. Ford. The conversation we had was about the best way to handle the information that was just presented to all of us.

[12:30:06] I have now been in numerous caucus meetings where politics has not been discussed, where what has been done was the most