The FRONTLINE Interviews

Richard Blumenthal

U.S. Senator (D-CT) and Senate Judiciary Committee Member

Richard Blumenthal, a Democrat, is a United States senator from Connecticut. He is a member of the Senate Judiciary Committee.

This is a transcript of an interview with FRONTLINE’s Michael Kirk conducted on December 12, 2018. It has been edited for clarity and length.

This interview appears in:

Supreme Revenge

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The Death of Justice Scalia and Mitch McConnell’s Gamble

After Antonin Scalia dies, it doesn’t take very long before Mitch McConnell (R-Ky.) has declared that he’s not going to receive a nomination from President Obama.Your thoughts about that decision?

Well, the Republicans have been on a mission, very calculated and strategic mission, to remake the courts in the image of the far-right extreme end of the Republican Party, so they have outsourced their decision making to the Federalist Society and the Heritage Foundation.President Obama wanted to fill that vacancy.Mitch McConnell embarked on a similarly well-calculated strategy to prevent it from being filled so that they could do it.The Republicans wanted to fill as many seats as they could, and they had the hope that there would be a Republican president.

President Obama picks Merrick Garland intentionally as a moderate to conservative justice, making it intentionally hard, hoping to break the Republican stranglehold, if you will, Leader McConnell has on them.How does it work?

The Republicans didn’t want a moderate.They didn’t want someone in the mainstream of judicial thinking.President Obama was nominating a moderate, mainstream candidate for that seat to replace Justice Scalia.They wanted someone even to the right of Justice Scalia, and they succeeded in delaying the vote by essentially shattering all the norms and breaking the practices that normally apply to Supreme Court nominations.There was never a hearing.They never gave the nomination a chance.

The Nomination of Brett Kavanaugh

So this is the sort of first of a few revenge acts by Leader McConnell, going all the way back.We’ve started this film back in [Robert] Bork, when young Mitch McConnell comes out and shakes his fist at the camera and says: “All right, Democrats, you want to play this game?I’ll see you down the road a few years.”Then you see [Clarence] Thomas and [Anita] Hill happen.Then we’ll see this moment with Merrick Garland.And then we come to [Brett] Kavanaugh.… When you hear that it’s Kavanaugh, and you hear where Kavanaugh is from, how do you respond, Senator?

Well, let me first say, to view the Republican effort as a revenge I think it’s too simplistic.I think that it is part of an ideological campaign to remake all of the federal judiciary, not just the Supreme Court, but the federal bench in the image of the Republican right wing.And I would begin that story with [David] Souter, not with Bork, because Souter was supposed to be a conservative.As it turned out, he was an independent, open-minded judge who was an unreliable conservative.The mantra after Souter was, “No more Souters.”This story is not only about revenge for Bork; it is about the calculated and strategic effort to remake the United States Supreme Court with "reliable" conservatives—the word they used so that there would be no more Souters.

When I heard about Judge Kavanaugh, even before he was nominated, he fit the Trump litmus test, and that test was to clearly overturn Roe v. Wade and adopt a far-right extremist view of the Constitution.So I did research on him.I learned about his background, primarily as a political operative, and I decided that I would oppose his nomination.

So take me inside the process of the Democrats to get ready to face off against the Republicans at this moment.We’ve all witnessed it in one dimension or another.It would be great if you could help us understand what the thinking was inside the Democratic caucus about what to do and how to go about it.

You know, I wish I could characterize the Democratic caucus or describe it in a single sentence, or even describe it at all.I can speak for myself and some of my colleagues, because we were really deeply concerned about a number of Judge Kavanaugh’s views, expressed very freely and articulately in his writings, his opinions, his public statements.He participated widely in teaching courses, as well as writing for law reviews and other publications.So his views were no mystery, even on the day of his appointment, and our approach was really to study those judicial and legal positions and opinions.

The Initial Kavanaugh Hearings

So I watched last week, and again, that first day of hearings, when [Chuck] Grassley (R-Iowa) taps the hammer and sort of taps the gavel and says, “OK, everybody,” …it really erupts.Can you describe for me what was happening from your perspective at that moment?

I objected to going forward, because we needed documents that were denied us.To appreciate how extraordinarily autocratic and just exceptional this process was, you have to understand there were millions of documents that were denied to Democrats and Republicans, documents from the National Archives, documents that belong to the American people, that were screened by an individual who used to work for Brett Kavanaugh in the Bush White House.

I urged the Republican majority to delay the hearings until we could review the documents, which were essential for us to ask all of the questions that we have a responsibility to pose to this nominee.And unfortunately, the majority proceeded.We filed an information request, in fact a Freedom of Information Act request.Our Freedom of Information Act request was a last resort.We then sued as a last resort for those documents.On the very first day, I urged that those documents be made available before we went ahead with the hearing, because our questions really depended on documents.That’s the way to elicit the facts and evidence about what that nominee did as a member of the Bush White House, and in subsequent positions, throughout his career.

One of the things we’re looking closely at is Mitch McConnell’s role in all of this…He’s worried you're going to try to slow it down.He is trying to rush it along, and you're—obviously, you must be worried that he’s going to just fly through everything, and you're not going to get an opportunity to do it.Is that pretty much an assessment from your perspective of what McConnell’s task and method was?

It was clearly a rush to judgment, ramming through this nominee, supposedly so he could be on the Court by the time the term began in early October.But clearly, the net result was to deny us documents, to conceal relevant materials, to short-circuit the process, and to straitjacket the FBI investigation.And that denied us a full record.The Republicans truly shattered the norms and broke the traditions and practices that normally have pertained to all of these nominees in the past.And the rush to judgment really gave rise, I think, to an appearance of failure in the process that will be a stain and a taint on the court as well as this nominee.

Allegations by Christine Blasey Ford

When Dr. [Christine] Blasey Ford, when the information about her sort of exploded as it did that Sunday, and all of it starts to roll out, what were you thinking?Tell me about it from your perspective.What was happening in that room, in this hearing?

Well, I learned about Dr. Blasey Ford in September, shortly before it became public.Sen. [Dianne] Feinstein (D-Calif.) had known about it since July, and the members of the committee learned about it in early September, essentially.I was stunned, deeply surprised.I wish I’d known about it earlier.I wish the public had known about it earlier.And I understand Sen. Feinstein’s respect for the survivor and the principle that survivors should have the opportunity to come forward when they wish to do so on their own timetable.And the possibility of that survivor having relevant and material information about the nominee led me to think there has to be an investigation.

After she speaks, your response?

I found Dr. Ford fully credible.My view of Dr. Blasey Ford was she was credible, powerful, compelling.I believed her, and so did a lot of the nation, and led me further to believe there has to be an FBI investigation, which unfortunately never fully happened.

McConnell and Grassley and the Republicans are in a pickle now.There's a break between events.… Did you see any palpable change or feel any vibration of change from the Republican side during that break in anticipation of Kavanaugh coming out?

My Republican colleagues clearly were riveted by her testimony.She was so powerfully credible.And all of us, I think, were deeply moved by her clear sincerity.I believed Dr. Blasey Ford, and I believe some of my Republican colleagues did as well.I believed her, and my impression was that a number of my Republican colleagues did as well, and that is because she stated what she knew.She spoke the facts as she recalled them, and she was clear in acknowledging that she couldn’t remember all of the facts.But it was powerful testimony, and I think, on both sides of the aisle, her impression was compelling and powerful.

Brett Kavanaugh’s Rebuttal

So Kavanaugh comes out and sits there.Your response to his testimony?

Well, as you know, there was earlier testimony.

Yes.

And I think you have to understand that in the earlier testimony, he was composed.I disagreed with him.I tried to elicit more specific answers from him on the issue of his dissent in Garza, his statement that Roe v. Wade is existing precedent.Like he would say, “This is my existing wife.”Doesn’t give you a lot of confidence that the wife is going to be around all that much longer.In various ways, he was sending signals to the Federalist Society and the Heritage Foundation: “I'm your guy.”He was campaigning for this position, even as he was a judge on the court of appeals.

I elicited opinions on his view of presidential power, which simply supported his idea that the president is almost an imperial position, with the power and right to refuse to enforce laws that have been upheld by the Supreme Court itself and approved by a prior president.The right to fire the special counsel for any reason, or no reason at all, to refuse subpoenas—this kind of power is an anathema to our constitutional system.

So the earlier hearing simply confirmed my views that Judge Kavanaugh’s positions on these issues were out of the mainstream.But he was also evasive and misleading in refusing to say that, for example, Roe v. Wade was correctly decided, and other established, long-established precedents to the court, were correctly decided.

The Judge Kavanaugh who came before us after Dr. Blasey Ford was rageful, spiteful, really threatening.When he said to us, looking at the Democratic side of the Judiciary Committee dais, “What goes around comes around,” when he said that our opposition was simply the revenge of the Clintons, it was unprecedented.In any nominee I've seen before the Judiciary Committee, or any nominee I've seen testify in the United States Senate, that anger and threatening tone was deeply troubling to me, as a matter of temperament.A judge has to be even-keeled and impartial, no matter what the feelings may be.

Some people we've talked to, even Flake, Sen. [Jeff] Flake (R-Ariz.), says: “You know, I like to believe I'm that kind of a guy.I’d come out angry, too.I’d come out shooting, too, if somebody had made these allegations.He went too far, but I’ll tell you what: I get it.”How do you respond to that?

The words that he spoke reflected a temperamental failure, a lack of control.And he acknowledged it, in fact, in The Wall Street Journal article that he wrote, saying that he regretted his tone and content.So I think that everybody can be angry, but nominees for judgeships have to demonstrate temperament, control and impartiality.

This idea that he was really speaking to an audience of one, the president of the United States, what do you think?

Well, my Republican colleagues said, some of them, “He’s talking to Donald Trump.”But he was appearing before the Judiciary Committee.And we have an independent responsibility to advise and consent.What's lost in a lot of the comments is that the Supreme Court is different.I was a law clerk on the United States Supreme Court.I've argued four cases before the court.I have deep reverence and respect for the court as an institution, and its power depends on its credibility.

The trust and confidence of the American people that justices on the court are going to be impartial, objective, nonpolitical, those threats, “What goes around comes around,” were distinctly and undeniably political.And my fear was that he was delegitimizing himself as a justice, and delegitimizing, in part, the court itself.

Jeff Flake and Further FBI Investigation

…When Flake is in the elevator, and when there are protests happening all around, a, let me ask you first about the protests.Where do they come from?What's it about?What's the anger about?What's happening?How big a deal was it that there were so many and so vociferous protesters around those hearing rooms and all around the Capitol?

I don’t know whether those protesters changed any votes, but it was a striking display of democracy.That’s what democracy looks like, people coming to the United States Capitol and carrying banners and wearing t-shirts that say, for example, “I'm what’s at stake.I am what’s at stake.”People wearing those t-shirts, carrying the banners and the signs, may never have changed any votes, but they showed a sense of democracy that I think was very important.And whatever the appearance, they were pretty ruly, not unruly.They were polite, by and large.I think we need to recognize that democracy consists of people expressing their views, and what better place to do it than the United States Capitol?

And that’s that moment, with Flake in the elevator, in lots of ways.You know, obviously it may not have changed lots of votes, but it certainly impacted Jeff Flake by the time you watched him walk in the room.Could you tell something had happened?

I couldn’t tell at that moment whether anything had happened, but we were all hearing from our constituents.I think it was more than just a handful of people in an elevator.I think it was his sense that something was amiss in this process, that the facts and evidence needed to be uncovered.And that was an instinct that absolutely was correct, because in shattering the norms and breaking the traditions, the Republican leadership essentially tried to ram through this nomination without all of the facts and evidence.

When he and Chris Coons (D-Del.) disappear into the backend of the cloakroom, and then ultimately into a phone booth to call Sen. [Susan] Collins (R-Maine) and [Lisa] Murkowski (R-Alaska) and Joe Manchin (D-W.Va.), I gather, what are you thinking at that time?Do you know what's going on in the room?You guys are leaving, and in and out.And what was happening?Describe that for me.

I can't remember distinctly all of it, but everybody was talking to everyone else, and there was a lot of back-and-forth about what should be done about the need for facts and evidence—additional interviews by the FBI, additional documents.There was a sense that really, there was a gap in the fact-finding that had been done.

…How would you characterize what that FBI investigation actually was?

The FBI investigation was inadequate, not for lack of will on the part of the FBI but because limits and constraints were imposed on them, who they could interview, what they could do.So Dr. Blasey Ford nor her husband were ever interviewed, and neither was Judge Kavanaugh.The FBI investigation was, in effect, straitjacketed.It was constrained by limits put on the FBI.

Who put those limits on?

The Republican leadership put limits on the FBI so that Dr. Blasey Ford was never interviewed.Her husband was never interviewed.Judge Kavanaugh was never interviewed.Her therapist’s notes were never reviewed.Other corroborating witnesses were never interviewed.And those kinds of limits and constraints vastly diminished the use of the FBI report.

The vote that seems to be on the bubble is Susan Collins for a period of time, right there, right as you're getting into the final stages. What kind of pressure do you think she was under to make this decision?

I only know what appeared publicly.And certainly, there were a lot of op-eds and letters to the editor, and I know that my colleagues spoke to her.There was a lot of talk.I'm sure that she received a lot of letters and phone calls.There were op-eds and letters to the editor, a lot of focus.

And were you surprised that she landed where she landed?

You know, whether I was surprised or not really doesn’t make a difference.I was disappointed.I was disappointed, because I was an advocate of stopping the nomination.I continued to believe, and I said it on the floor, that his judicial views and opinions were out of the mainstream, and that his position on the imperial presidency, on women’s health care, on the Affordable Care Act’s protection for people who suffer from pre-existing conditions, workers’ rights, consumers’ rights, environmental protection, those real views would make a real difference in real people’s lives.That was the fundamental basis for my opposition from the start.

But I also very sincerely regretted the effect of ridiculing and mocking Dr. Blasey Ford, the impact on other survivors in coming forward and sharing their stories.Sexual assault and domestic violence are among the most unreported of crimes, precisely because survivors fear the kind of character assassination and public shaming and threats to safety that Dr. Blasey Ford had to endure.So I was disappointed with Sen. Collins’ ultimate decision.But she expressed her respect and support for Dr. Blasey Ford.I was deeply disappointed by the mocking and ridiculing that took place not only from some of the commentators, but also from some of my colleagues.

And the president of the United States in Mississippi that Friday night.

The president of the United States mocked and ridiculed a survivor of sexual assault in a way that I found reprehensible, because it would simply confirm the views of many survivors that they would also be mocked and ridiculed, shamed and character-assassinated.

Politicizing the Court

…How has this process changed, a process that was once—I may not like the president of the United States, I may disagree with him politically, but he gets his person, and unless that person is deeply flawed, they get my vote.From whenever that was to now, I know occasionally it’s been true anyway.But to now and to what just happened, how much has the process changed?

The nominations of Supreme Court justices have become very severely politicized, which endangers public trust and confidence in the Supreme Court as an institution.It is indeed the least dangerous branch, as Alexander Hamilton called it, because it has no armies.It has no powers of the purse or sword.And so it depends on the public’s trust that it will be impartial.If it is the result of a severely politicized process, as it has become, its legitimacy and authority is endangered.And the shattering of norms and breaking of long-established traditions, bipartisan norms and traditions, means that we need to restore that sense of confidence not only in the court, but also in the process.

Republican Prioritization of the Courts

...Let me see what we've missed. Just a couple.As minority leader and then majority leader, Sen. McConnell seems to be really focused on the judiciary.During that time, sort of leading up to Scalia’s death, did the Democrats understand how focused he was on it?Did they have a strategy?What was, from your perspective, what was going on in that time period?And especially what was the response of the Obama administration and Democrats in the Senate?

A number of my colleagues and I focused on the judiciary.My life has been about litigation.I did it for 20 years as attorney general.I was the U.S. attorney in Connecticut, the chief federal prosecutor for four and a half years.I was in private practice as a litigator, so I pay attention to the courts.And the lasting legacy of any administration really is the judges who continue to serve long after a president has gone, and long after most of us leave office.That’s why I was deeply concerned about the conscious, calculated, strategic approach of Republicans to the courts generally, and particularly to the United States Supreme Court.I thought that it should be much more prominently an issue for us as senators, but also for the president of the United States.And indeed it was an issue for many of Donald Trump’s voters, and for many Republican supporters.

My view, and I expressed it vehemently, was that we as Democrats need to sound the alert and the alarm that this conscious, strategic effort by Republicans to fill the courts and remake them in the image of the extreme right wing of the Republican Party, beyond the traditional Republican views, would have lasting and enduring consequences.

Do you think that message was heard at that time?

I don’t know how well or widely it was heard.A number of us were articulating it.And the views of the day, as to the importance of the economy, infrastructure, health care, they're all supremely important issues, and alerting the public to the importance of the judiciary has to be on our front burner.

Response to the Testimonies of Christine Blasey Ford and Brett Kavanaugh

You said that after Dr. Ford testified, some of your Republican colleagues were deeply moved by her testimony.Did you feel a moment when things shifted, even when Justice Kavanaugh testifies, when Lindsey Graham (R-S.C.) speaks up, what inside that hearing—was there a moment then or afterward where it felt like things had changed?

I don’t think there was a single moment.It was the accretion of her continuing insistence that she knew for sure that the assailant was Brett Kavanaugh, that she could describe the laughter from him and that she could talk with convincing and compelling clarity about her feelings and the circumstances and that she would acknowledge equally clearly what she couldn’t remember.That kind of clarity and forthrightness, I think, was really a mounting sense of credibility.

But when did the Republican members of the committee decide that they were going to support Kavanaugh?Was it after her testimony?Was it when he’s speaking?

My simple answer to that is I don’t know.

My last question is, especially on that Friday, there's a lot of personal sort of allegations when you watch that hearing about, you know, this was an 11-minute sabotage.There seems to be Sen. Grassley and other Republicans on the committee seemed to be really angry at the Democratic side.Oh, when you're in that moment, is that an unusual moment of partisanship inside the committee?What was that moment like?

There were clearly deep passions on both sides, and anger and hurt in that room.And my feelings really were about Dr. Blasey Ford, because she was really enduring the experience of a lifetime, and possibly damage of a lifetime.But there were clearly strong tensions and passions in that room on all sides.

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