Executive Session

Floor Speech

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Mr. RUBIO. Mr. President, as a Member of the U.S. Senate, my role in providing advice and consent to the President on his or her nominations to the Supreme Court is among our most important constitutional duties.

In fulfilling that duty, I have a pretty clear criteria on how I go about making these decisions. The first is whether the nominee has the character to serve on the Supreme Court; the second is whether the nominee has the intellect and the experience and the academic credentials to serve on a Court that hears complex and difficult questions of law; and the third is does the nominee believe in the proper role of the Supreme Court, which, in my opinion, is to interpret and to apply the Constitution, not to change or manipulate it to reach a certain policy goal.

There is broad bipartisan support for the first two parts of my criteria. We can all agree that people who serve on the Court should have the character to do so. We can all agree our nominees and those who serve on the Court have to have the intellect and the experience and the academic credentials to be on the Court.

Much of our fights around here center around the third part of my criteria. In fact, it goes to the heart of most of the nomination fights we have. There are some who would like the Supreme Court to become a policymaking branch, a place that makes policy and makes laws, but I believe the job of an appellate court is to decide whether a policy decision of the political branches is constitutional. Appellate courts and trial courts are different. Trial courts are triers of fact. Appellate courts are triers of law.

The debate about the proper role of the Court plays out most vividly on some of the most divisive cultural issues, and it always has. For example, on the difficult issue of abortion, the question before the Court in Roe v. Wade was not whether it was good or bad for abortion to be criminalized or constricted, the question was whether the Constitution gave the State or Federal Government the authority to pass laws that banned or restricted abortions.

The question before the Court in Obergefell v. Hodges was not whether same-sex marriages were good or bad for America. The question was whether the Constitution allowed States to define marriage as being between one man and one woman.

In deciding these kinds of questions, I believe Justices, both on the Supreme Court and appellate-level judges, should apply the strictest interpretation of the Constitution according to its original intent, irrespective of whether the policy result of their decision is something they personally agree with. The reason for that is because if the Constitution can mean whatever people at a given moment want it to mean, then the Constitution doesn't really mean anything at all. We can change our laws. That is why Congress has to respond to the electorate, why we debate laws, and then are held accountable for it, but the Constitution has to be something that is constant, irrespective of the political tides of the moment.

Now, you can change the Constitution. The Founders gave us a process to do that through Article V, the constitutional amendment process, and that has been used in this country. They would not have given us that process if it were their intent that the Supreme Court be the one that could change the Constitution.

The reason I outline that criteria is because that is the criteria I used to evaluate Judge Kavanaugh's nomination when it was first presented. I found myself with no doubts about his intellectual ability or his academic credentials, and I don't think anyone has raised those.

I have seen seven FBI background checks that turned up no issues with his character, and I had 12 years of his service as a Federal appellate judge as proof that he shared my criteria for the proper role of the Court and the proper standard for constitutional review.

So it was based on that and on those facts that in August I announced I supported Judge Kavanaugh's nomination.

Then, several weeks ago, the allegations, first by Dr. Ford and then by others, emerged. Sexual harassment and assault is something I feel very strongly about. It is, for example, one of the reasons I have been involved for a number of years now in a bipartisan effort to reform and improve how we handle claims of sexual assault on our college campuses. Our Nation is now facing a reckoning for decades of not addressing sexual violence appropriately.

While I obviously will not betray anyone's confidence or privacy, I have personally seen how victims of sexual assault often find their claims dismissed and ignored. I have seen how sometimes they are told things like: You are partially to blame for putting yourself in that position. I have seen how so many never came forward and don't want to come forward because they don't think anyone will believe them or they don't believe anything will ever happen.

That is why I believe anytime anyone comes forward with allegations of sexual assault or harassment, abuse, these allegations cannot be swept aside, and they cannot be ignored. When these allegations emerged in this case, my immediate reaction was to say these claims should be taken seriously and his accusers should be fully heard. I said I would have no further comment on his nomination until we knew more about these allegations. What that meant was, my support of Judge Kavanaugh was now contingent on the information that emerged from the hearings and the investigation and the work that needed to be done.

I will say today what I said at this time last week. I believe neither Dr. Ford nor Judge Kavanaugh have been treated fairly in many instances. Some--I saw you--immediately basically dismissed these claims as a political ploy. Others went on television almost immediately and said they believed Judge Kavanaugh was guilty without any information before them.

Despite the shameful behavior of so many, a process did ensue. Through all the noise, that did produce additional information. The Senate's Judiciary Committee and then the Federal Bureau of Investigation gathered and made available to every single Member of the Senate additional relevant information.

The committee took sworn testimony from several named witnesses. I know for a fact they chased down and investigated a seemingly endless stream of incoming information every single day, and it provided both Dr. Ford and Judge Kavanaugh the opportunity to give written statements and then participate in hours of public testimony, not just before the committee but before the entire Nation.

When that hearing ended last Thursday, the information before us was as follows: The sworn and unequivocal allegations by Dr. Ford, the sworn and equally unequivocal denial from Judge Kavanaugh, no witnesses with knowledge of these allegations, and no independent evidence to corroborate them.

After the hearing, a week ago today, some of the Senators on the committee wanted a short delay. I watched that hearing. It was agreed to by everyone there, a short delay, 7 days, so the Federal Bureau of Investigation could gather even more information, and I had no objection to that.

Over the last week, the FBI interviewed 10 additional witnesses and gathered additional relevant information for every single Senator to review.

First, I was briefed on these interviews and information; then I had occasion to review them for myself. Here is what I know now about the allegations against Judge Kavanaugh. I have the sworn and unequivocal testimony of Dr. Ford and Ms. Ramirez making these allegations against Judge Kavanaugh. I have the sworn and unequivocal denial of these allegations from Judge Kavanaugh. I now have before me the testimony of 10 additional witnesses, including those identified by Dr. Ford and Ms. Ramirez as having been present when Judge Kavanaugh allegedly assaulted them, and not a single one of them had any recollection of the alleged gatherings, much less any knowledge of these allegations, and I still have no independent evidence which corroborates these allegations as well.

That is the information before me as I stand here at 1 p.m. eastern time on the 5th of October with regard to the nomination of Judge Kavanaugh to the Supreme Court of the United States. That is the same information that is before every other Member of the Senate who has access to the exact same information that I saw, that I read, and that I was briefed on.

I have listened to the arguments made by some of my colleagues and others urging me to still vote against the nomination. The most direct argument made to vote no is that the FBI did not interview enough people.

First, my view is that the only people who could corroborate those claims are those who were there when it happened because anything other than that is hearsay. If you didn't see it happen, all you can testify to is what someone else told you. The only people who could corroborate that something happened are either people who received physical evidence or people who witnessed it. From what I read yesterday, every single person the accuser said was present when it happened testified that they do not know anything about it.

By the way, the other point I would make is that these interviews that we saw yesterday, the 10 additional ones--it would be unfair to view them in a vacuum, as if they were the only information we have to go off of. Here is a fact: Over nearly the last two decades, the Federal Bureau of Investigation has interviewed over 150 people, asking questions about Judge Kavanaugh's background and past. Over 150 people have been interviewed about Judge Kavanaugh over the last two decades and across seven background checks, and not a single one of them has ever testified as to any sexual assault against anyone at any time.

It struck me that there isn't a single Member of the U.S. Senate, I think--maybe I am wrong, but I doubt seriously that there is any Member in the U.S. Senate who has had the FBI question over 150 people about what they have done throughout their life. In fact, I would venture to guess that there are probably few, if any, Americans who have had the FBI interview over 150 people about what they have done throughout the course of their lives. I believe it is reasonable to assume that if Judge Kavanaugh was someone who had engaged in a pattern of abusive behavior toward women--on a pattern--at least one of these 150-some-odd people would have noticed and would have said something about it. Yet not a single one of them did.

I would be remiss if I didn't mention that there is clearly another factor that is driving much of the anger and passion around this nomination, and it has nothing to do with partisan politics or politics at all, for that matter. It is the fact, as I mentioned earlier, that, sadly, far too often, particularly women who come forward with allegations of harassment, abuse, or assault are ignored, dismissed, and even blamed. The fact is, because of this, there are potentially millions of victims who have never come forward and who suffer in silence.

I understand that for the victims and for those who love them and for those who are survivors, to hear about these allegations brings back powerful and painful memories of what happened to them, of how they were ignored, how they were not believed, how they were blamed, and how their abuser got away with it. What has happened to these survivors is an injustice. It is wrong. It is something that we as a nation must reckon with and we as a people must fix. But the solution to injustice is never injustice, and it would be unjust to turn this nomination into a proxy fight over the broader, important issue of how we have treated victims of sexual assault in America. As important as that topic is, this debate is about a specific case involving specific people and specific allegations. Fairness and justice require us to make our decision on this matter based on the facts before us on this matter.

It was wrong for some to immediately dismiss these allegations almost as a reflex, but it is also wrong to claim that a vote for Judge Kavanaugh's nomination means that you do not care about and do not as a matter of course believe victims of sexual violence.

My colleagues and my fellow Americans, this case is about this case, and although the ways in which both the accuser and the accused have been treated are shameful, we must still make our decision based on what we know.

I want to make one thing abundantly clear: I do want people on the Supreme Court who believe that the proper role of that Court is to interpret the Constitution according to its original intent, but if I had any evidence--or if any evidence emerges that corroborates these or any allegations of this kind--I would have voted against this nomination in a heartbeat because someone who has committed sexual assault shouldn't be on the Bench, they should be in jail. If you lie about it to Congress, you should also be charged with perjury. But after 7 background checks and over 150 people having been interviewed, we don't have any independent evidence to corroborate these allegations against him--none.

So with regard to this specific case, on the basis of the facts that I have before me, that we have before us--on the basis of what facts am I supposed to not just vote down this nomination but in the process of doing so, render what will forever be perceived as a verdict of guilt? On the basis of what facts can anyone say or do that?

It is legitimate to vote against him because you don't agree with his judicial philosophy, but it isn't fair to say you are voting against him, as some imply, because we are on the verge of putting someone who is a confirmed and verified sexual abuser on the Bench. That isn't justice, and no matter how just the cause is, a just cause never, never justifies an unjust means.

Based on the specific facts before us regarding this specific nomination and this specific case, I already voted to end debate on the nomination of Judge Kavanaugh, and tomorrow I will vote to confirm him as an Associate Justice of the Supreme Court of the United States.

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