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tv   U.S. Senate Sen. Merkley on lawsuit over Kavanaugh records and allegations...  CSPAN  September 27, 2018 9:12am-9:29am EDT

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process. i say to all of my colleagues, for this process to be a process, we have to have open minds. we must listen. we must do our best, seek the truth in good faith. that is our only duty. thank you, madam president, i yield the floor. >> mr. president, today i filed a lawsuit related to a violation of the separation of powers. our constitution lays out a very clear framework in which the president of the united states nominates and the senate proceeds to review the record of an individual in order to determine if that individual is of fit character to serve. this strategy came as our founders struggled with how to
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enable staff to fill depositions in the executive branch and key positions in the judiciary. and something that hamilton wrote about extensively in his federalist papers. number 76 was written in 1788 as a letter to the people of the state of new york, and in it he addressed this separation of powers at length. he said that the founders had considered giving the assembly, that is a large group, the ability to chose those who would fill the executive posts, check and balance. but considered that senators would probably horse trade. one senator from want their friend in one state and another senator from another state
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would want a different person and that that horse trading would not produce the best is set of individuals to populate the executive branch or to serve as judges. and so they came to rest on the idea of having one individual, the president, nominate individuals to serve and here is part, a short piece of his longer discussion. he says the sole and undivided responsibility of one man will naturally beget a lively liiert of duties and fulfill himself with obligations and more able to investigate with care the qualities requisite to the stations to be filled and to prefer with impartiality the persons who may have the fairest pretentions to them.
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it goes on to applaud the many merits of having one individual bare the-- bear the burden of making these nominations. of course, it's a nomination and not an appointment. and to be appointed, the senate must confirm, and he addresses this question then of the role of the senate and he says the following. alexander hamilton writing to explain the action, the design of the constitution in his letter to the people of new york in 1788. alexander hamilton says, to what purpose then require the cooperation of the senate? i answer that the necessity of their concurrence would have a powerful, though in general silent operation. it would be an excellent check
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upon the spirit of favortism in the president and tend greatly to prevent the appointment of unfit characters. and he goes on to say that a president might be influenced by favortism to people from his own state or favortism to people in his family or family connections. or favortism because he had a friendship. or a respect for popularity triumphing over professional skills. so, for all these reasons, the senate process exists to review the record of the individual. and a determent as hamilton put it. is that individual of fit character or unfit character? now, we all here in the senate took an oath of office to uphold the constitution. and certainly that means
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defending and exercising our responsibility under the advice and consent clause of the constitution. we cannot interfere in the ability of the president to nominate. that is the president's responsibility. we can give our suggestions, but in the end, whatever the president says in regard to an office. whatever person the president identifies, that is the nominee and we cannot interfere in that. but so, too, then can the president not interfere in the exercise of the senate in reviewing the record of the individual. certainly the president can share his or her insights on the individual. his or her encouragement to speed up the process, but cannot interfere in the
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underlying exercise of reviewing the record. but here we are in this extraordinary moment where the president of the united states has crossed the boundary between the separations of power, has proceeded to interfere with the deliberations of the senate, and has done so not once and not twice, but at least on three significant occasions. and i will proceed to share those occasions. the first was for the president's team to intervene to stop the senate from accessing nominee cavanaugh's records when he served as staff secretary to president george w. bush. now, senator leahy, the longest
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serving member of the senate, long time member of the judiciary committee notes in the letter that the committee has a, quote, longstanding bipartisan expectation that any materials produced while a nominee was a public servant that could shed light or his or her views, thinking or temperament that are not public scrutiny should be before the senate prior to confirmation. now, this was a view that was a bipartisan view. it's a view that was expressed by a senior member of the judiciary committee, a republican member, and that individual, senator cornyn, proceeded to note that the documents that judge kavanaugh had, and i quote, generated, authored or contributed to, unquote, during his tenure as
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staff secretary should be conveyed to the committee and he added, quote, just seems like common sense. in other words, it just seems fundamental to our responsibility here in the senate to review the record of judge kavanaugh. but just days after the senior republican member of the judiciary committee expressed those sentiments, republican senators were summoned to the white house by the white house counsel, donald mcgann, and immediately following that summoning, those instructions, those directions from the white house suddenly senators are being denied the opportunity to see those documents. in fact, it went so far as the
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chair of the committee proceeding not to ask for the documents after this direction from the white house. so certainly that intervention did directly compromise our ability as senators to review the record of the nominee and therefore violated the separations of powers, violated each of our ability to fulfill our constitutional responsibilities. the second occasion is that defended william burke who has a series of close connections to the white house proceeded to exercise the power of executive privilege on behalf of the president to deny the senate access to 100,000 pages of white house counsel documents. and what did this individual say when he was exercising this power of sensoring the
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documents that would be obtained by the senate? he said the white house has directed that we not provide these documents. that is a direct interference in the advice and consent deliberations of the u.s. senate and all of us together, democrats and republicans, northern senators and southern senators, eastern coast, western coast, heartland, all of us should defend our responsibilities under the constitution to provide advice and consent, which means the ability to review the record of the nominee. and then there's a third occasion where defendant burke proceeded to label documents being presented to the senate as committee confidential. in fact, the committee consulted with him during the process to see what the extent of this was and why they were done. now, there is no index that provides information to the
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senate on why so many documents were blocked by burke from ever getting to us. that's logged, that index doesn't exist saying, yes, we looked at this document and here is why executive power prevails and there's no record or log for why more than 141,000 pages of documents were labeled committee confidential, preventing senators from proceeding to talk about the contents, to have the contents examined by experts. the contents examined by the public. take feedback from the citizens of the united states. have staff be able to look at these documents, be able to review them and be able to give feedback on them, to fulfill our responsibility here as senators to examine the record of the nominee. thursday, we are in uncharted territory. never before have we seen this
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direct and substantial and extensive intervention by the president in violation of the separation of powers under the advice and consent clause of the constitution. and thus, it's important that we asked for judicial intervention. there is no more important document to us than the constitution. are we the people, constitution of the united states of america. we will be failing if we do not aggressively pursue our responsibility to review the record of a nominee. so let us do that. let us ask the court for intervention to ensure that we have access to this record. that we've had over the past few days, new information regarding the nominee. new information from women who had -- have shared their
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experiences, difficult, difficult experiences and what would be the appropriate conduct here in the senate? it would be for the fbi to investigate. not a criminal investigation, but a background investigation. that was accorded to anita hill in 1991, a reopening of the background investigation to get the facts. how is it that a senate that could support, and a president who can support the proper role of the fbi in 1991 will not stand up today for fairness for women who are coming forward? why is it that the nominee steeped in the law who has said he wants a fair hearing, wants a fair hearing, why does the nominee not demand a fbi investigation so it's fair to him and fair to these three women? dr. ford coming forward and debra ramirez coming forward
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and ms. swetnick coming forward? now, they are being treated very poorly by this institution. they are being treated as if they are a problem, where they are, in fact, courageous americans helping us do our advice and consent responsibility to understand the record of the individual. is the individual fit or unfit? and to those who say, well, these might not be true, wouldn't you be the first then to stand up and say that the fbi should reopen the background investigation and that nothing should go forward until the president authorizes that? if you want fairness, you want facts. and here we are, not only are we failing the test of 1991 in terms of the fbi investigation, we're failing the test in terms of the witnesses. well, in 1991 numerous corroborating witnesses came
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forward to share and expand the division, the dimensions of the events under consideration with anita hill, but now, the judiciary committee is saying, we are only going to allow a he says-she says dynamic, absolutely unfair to the women who have come forward. and now the judiciary committee is saying they're going to bring in a female to prosecute as if this is a trial of the woman who is coming forward. how wrong is that to try to turn this into a trial? and if you want a trial, well then shouldn't you have the fbi investigate and get the facts? it shouldn't be a trial. we should be listening carefully and we should be allowing those with corroborating information and certainly for the nominee, as well as those who are sharing their experiences from the past about the nominee, fairness to bo both.
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transparency for both. opportunities for both. but not this farce of a hearing planned by the republicans on the judiciary committee. we should be able to do so much better. you know, we've had decades of experience since 1991, since we went through a parallel allegation regarding personal contact. how is it now 27 years later we are doing so much worse in respecting women coming forward to share their stories? why are we doing such a worse job in respecting the dignity, such a worse process in terms of soliciting the facts? such a worse process in terms of trying to turn it into a
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trial of a courageous woman who came forward to share her experiences? well, i have never felt so burdened by the misconduct in this chamber as i feel right now. so let's stand up for decency and dignity, honor those who come forward, respect them, listen to them, explore the stories that they share the experiences that they share so that their voices can be fairly heard before this body, and let us not let the president of the united states trample all over the constitution by violating the separation of powers and blocking our chamber from receiving the documents necessary to review the record of the nominee. thank you. . >> mr. president, i am


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