As delivered at the U.S. Senate on Oct. 4, 2018
Editor’s note: The Colorado Sun has also invited Sen. Cory Gardner to share his comments on Kavanaugh’s confirmation.
Our vote on the nomination of Judge Kavanaugh has left this body and the American people deeply divided.
But I think it has also united every American in the belief that this cannot be the standard for how the United States Senate or how the federal government should operate. This cannot be how our founders expected us to consider lifetime appointments to the Supreme Court of the United States.
As recently as when I was in law school, confirmations of a Supreme Court Justice used to be a chance for the American people to learn about our system of checks and balances and the rule of law — what made America so special.
No student in Colorado watching our conduct over the past few weeks would have anything to be proud of. Instead of modeling our checks and balances, we have been demolishing our checks and balances.
Somewhere along the way, we began to treat the courts as another front of our endless partisan war, with each vacancy an opportunity to bloody the other side and secure an ephemeral, political “win.” And the latest, lowest point in that story is this shambles of a confirmation process.
Weeks ago, I announced that I intended to oppose Judge Kavanaugh’s nomination. It was after the first round of hearings and before the later allegations of misconduct arose.
Then and now, I worried what his confirmation would mean for the people of Colorado. For those with pre-existing conditions who depend on the Affordable Care Act for life-saving treatment. For our farmers and ranchers who are so worried about climate change. For our children with asthma vulnerable to harmful pollutants. For same-sex couples in loving marriages. And for the women across our state who have a Constitutional right to make their own health care decisions.
I worried that Judge Kavanaugh would threaten the hard-won progress for all Coloradans — taking us from the independent majority under Justice Kennedy to an ideological majority deeply out of step with the values of people in my state, and I would say, throughout the United States. I worried that Judge Kavanaugh would block the reforms we need to break the fever gripping our politics — a fever on full display over the last few weeks. If confirmed, it is very likely that Judge Kavanaugh would provide a fifth vote against reforms to end partisan gerrymandering, to help workers organize, to help people vote, and to curb the corrupting power of money in our politics.
And, in the age of President Trump, I had particular concerns about the nominee’s expansive views with respect to presidential power and oversight, views that made me question the extent to which he would fulfill the court’s role as a check on the executive branch.
Finally, I had concerns that Judge Kavanaugh had an unusually partisan background for a judicial nominee — a concern borne out in the hearing last week.
All of this, Mr. President, led me to oppose Judge Kavanaugh’s nomination.
Soon after, Dr. Ford came forward with these serious allegations of misconduct. She came before the Senate Judiciary Committee and gave very credible testimony. She had no reason to make anything up, and she had every reason to stay quiet. But she came forward anyway, because she believed, as she said, it was her civic duty. And her courage has inspired hundreds of thousands of women, if not millions of women, across the country, including Debbie Ramirez of Colorado, to share their own stories. It inspired other survivors from my state to call, write, even fly to Washington and meet with me earlier today.
For her courage alone, Dr. Ford deserved far better than the casual dismissal we saw from members of this body, or the juvenile taunting we saw the other night from President Trump, who continues the same politics of distraction and division that managed to get him elected and that continues now to threaten to tear our country apart.
But President Trump is not the issue here. For all the damage he has done, he is not the cause of our dysfunction. He is a symptom of it. And that dysfunction is what we have to confront, especially now, as we find ourselves days away from a party-line vote for a lifetime appointment to the Supreme Court.
I recognize that both sides have their own argument or story about how we got to this point. I know that, ever since the majority demolished the rule requiring 60 votes for a Supreme Court nominee, there has been no incentive to select a mainstream candidate who can earn the support of both parties. In fact, all the incentives now run in exactly the opposite direction — of selecting a nominee who can appease the base of the party and earn the narrowest partisan majority in the Senate.
That reality helps explain why this process has been so divisive. If we still had the 60-vote threshold, it is hard to imagine the Senate moving forward on a nominee without disclosing their full record. Without giving the minority party time to review that record so they can ask informed questions of the nominee. That would never happen if you still needed 60 votes, if you still needed the other party as part of the decision-making, as part of advice and consent. We would expect the nominee to answer directly direct questions. And it would have been unfathomable that the majority would downplay serious allegations of misconduct, and in the case of Debbie Ramirez, refuse to even interview many of the potential witnesses that she identified.
None of this makes any sense if our interest is in protecting the integrity of the Supreme Court. It only makes sense if we have now reduced our responsibility and our duty under the Constitution to advise and consent to a completely partisan exercise. And that’s where we’ve gotten to.
I’ve said on this floor before that I deeply regret the vote that we took to change the rules for lower level officials and judges. I don’t think we should have done that. And I certainly don’t think the Majority Leader should have prevented Merrick Garland from coming to a vote on the floor of the Senate.
That was outrageous, unprecedented in our history. And I don’t think he should have invoked the nuclear option for the Supreme Court. I think that was a huge mistake.
We are going to have a partisan process forever, Mr. President, unless we can find some way back. This new majority rule when it comes to judicial nominees is why we now have Supreme Court nominees auditioning on cable television networks, in this case, Fox News.
It is why the president held a political rally and used it as an occasion to mock the accusers. It is why the White House limited the investigation to ignore key witnesses, allowing the majority leader to declare, as he did this morning, that it uncovered, “no backup from any witnesses.” Well they weren’t interviewed.
It is important to remember what the majority leader did to Judge Garland when Justice Scalia died: left open a vacancy on the Supreme Court for more than 400 days. Four-hundred days. And we can’t take the time to interview witnesses from a serious allegation, from somebody living in Boulder, Colorado? More than 400 days. And then we have a four-day investigation that doesn’t interview the witnesses that have been named, and the majority leader has the gall to come to the floor and say that the investigation had uncovered, “no backup from any witnesses.”
All of this is evidence of a confirmation process that has been overrun by politics, like everything else around here. Only, unlike many other things, this is a solemn responsibility granted to this body exclusively by the Constitution of the United States, by the founders who wrote that Constitution, and the Americans who ratified it.
This may help one party win presidential or senate elections, but it is toxic to our institutions. And we have exported what hopefully, Mr. President, will be the temporary, mindless, empty, counterproductive, unimaginative, meaningless partisanship from the floor of this Senate to the United States Supreme Court. We should be ashamed of that on the floor of this Senate, and we should be ashamed that we are doing that to an independent branch of our government.
Earlier today, I had a chance to meet students that were visiting here from Aspen, Colorado. When I meet with students, I sometimes get the impression that they think, Mr. President, that all of this was just here. That the Capitol was just here. That the White House was just here. That the Supreme Court was just here. And that it all somehow just fell from the sky. And I always remind them that it wasn’t just here. The only reason that we have all of this is because previous generations of Americans overcame enormous difficulty to write and ratify the Constitution.
We forget that Americans were sharply divided over whether to ratify the Constitution. Some worried that the new government would grow too powerful and become the very tyranny that they had just fought a war to escape. By the way, think about that for a second. That generation of Americans accomplished two things that had never been done in human history before. They led an armed insurrection that was successful against a colonial empire. And they wrote a constitution that was ratified by the people who would live under it. No humans had ever been asked permission for the form of government that they would live under until Americans got that opportunity. And we’ve set an example for the world. And it also must be said that the same founders perpetuated human slavery, which is a terrible stain on their work.
But another generation of Americans, who I think of as founders, just like the people who wrote the Constitution, abolished slavery, made sure women had the right to vote, passed the civil rights laws in the 1960s. Generation after generation after generation of Americans has seen their responsibility to democratize the republic that the founders created and to preserve the institutions that we created so that we could render thoughtful decisions in our republic. Our process for advice and consent looks nothing like that heritage.
When Americans were having that big division over whether to ratify the Constitution at all, Alexander Hamilton waded into that debate, and he responded to those who were worried that the government would grow too powerful or become a tyranny like the one they had just escaped. He pointed out the importance of our courts and the rule of law as a check against tyranny. He wrote that, “The complete independence of the courts of justice is peculiarly essential in a limited constitution.” “Without this,” he said, “all the reservations of particular rights or privileges would amount to nothing.”
Hamilton did not say that independent courts were optional. He did not say they were contingent on political convenience. He said they were essential. Essential to the working of this republic. And it is for this reason that the founders designed this extraordinary mechanism of checks and balances, including the unique duties we bear in the United States Senate.
But the founders also knew that that mechanism alone was insufficient. It required elected officials to act responsibly. To treat advice and consent, for example, as an opportunity to confirm judges of the highest intellect, integrity, and independence — judges who could maintain the confidence of the American people in our courts and rule of law. And today we have fallen so short of Hamilton’s standard. Instead of insulating the courts from partisanship, we have infected the courts with partisanship.
I have not met a single Coloradan who believes that confirming judges with 51 Republicans or 51 Democrats, instead of 90 votes from both parties, serves the independence of our judiciary. It does the opposite; it makes the courts an extension of our partisanship.
This is exactly what Hamilton feared. He warned that, “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 warning echoes loudly in the age of President Trump — a man who has called for jailing his political opponents; deporting immigrants without due process; banning entire religious groups; bringing back torture “and a hell of a lot worse.” A man who fired the FBI director in the middle of an investigation into his campaign, and who has tried to discredit that investigation with routine falsehoods ever since.
If ever there was a time for us to stand up for our checks and balances and our rule of law, it is now, Mr. President.
Instead, with this vote, the Senate is once again acceding to the White House and undermining the Supreme Court in the process. And the result is that we are going to continue to barrel down this dangerous path.
Unless we change what we’re doing, one of two things will happen. We will replay this process every time, confirming Supreme Court justices with the barest partisan majority and tearing the country apart in the process. Or, if the Senate and the White House are not of the same party, we will never fill a Supreme Court vacancy.
That is not what the founders expected. It is certainly not what the people of Colorado expect. We are playing with fire, Mr. President. Unlike us, the founders knew their history. They knew about the fall of Athens. And that history taught them that, more than anything, the greatest threat to freedom is faction.
The founders read the Athenian historian Thucydides, who tells us about a civil war that consumed the city of Corcyra 2,400 years ago. According to Thucydides, the city descended into factionalism. Both parties spared “no means in their struggles for ascendancy … in their acts of vengeance they went to even greater lengths, not stopping at what justice or the good of the state demanded, but making the party caprice of the moment their only standard.”
As the civil war intensified, both sides struggled to end it, because “there was neither promise to be depended upon, nor oath that could command respect; but all parties rather dwelling in their calculations upon the hopelessness of a permanent state of things, were more intent upon self-defense than capable of confidence.”
How familiar that sounds today.
In our acts of vengeance, Mr. President, we have gone to greater and greater lengths. We have ignored what justice or the good of the state demands. And in doing so, we have degraded our courts as we have degraded ourselves. But this is a human enterprise, just as it has been since the founding of the United States of America. And our situation is not hopeless.
This dysfunction does not need to be a permanent state of things. We can, and we must, be capable of confidence in ourselves, and our institutions, once more.
For unlike the stories told of ancient kingdoms and empires in history, we live in a republic. And in the story of our republic, we alone are responsible for writing its ending, or its continuance for the next 100 or 200 years.
So I think every American is probably disturbed by what has happened, and they know we can create a better ending. The question they have is whether their elected representatives in Washington will do so.
We need an ending that upholds the independence of our courts. Where we return to the honorable, bipartisan tradition of the Senate. Where we build a culture that has no place for sexual assault, and that provides an opportunity for people who have been assaulted to be heard, and to be able to do it in a way that doesn’t shame them or embarrass them or makes their difficulties even worse.
And I know there are a lot of people out there, and I agree with them, that don’t see a lot of hope for that in the process that we have had here. But what I would say to them is that, tonight, there are survivors from all over our country, including from my home state of Colorado, arrayed around the Capitol. Their being there testifies to the resilience of the human spirit. And it gives us all hope that, however difficult this moment, in the United States, progress is always in our hands. It is always our responsibility. And we need to act with the kind of courage they are showing by being here.
Thank you, Mr. President. I yield the floor.
Michael Bennet is a Democrat and Colorado’s senior U.S. Senator. He was one of 48 senators who voted in opposition to Brett Kavanaugh’s nomination to the U.S. Supreme Court.