SEN. BYRD: Mr. President, I ask unanimous consent that this speech, which I had previously prepared on this subject, be included in the record.
PRESIDENT PRO TEMPORE: Without objection, the Senator's entire speech, as previously prepared, will be included in the record, as requested.
SEN. BYRD: I thank the Chair.
Mr. President, I do not come to the floor today to debate the confirmation of the nomination of Judge Thomas. I come rather to state my viewpoint, believing that I have a responsbility to my constituents, a responsibility to Judge Thomas, a responsibility to my colleagues in the Senate, a responsibility to the people of the United States and a responsibility to myself.
I have not previously spoken on this subject. I have indicated from the very beginning to the President and to one or two senators -- Senator Dole, in particular -- that it was my inclination to vote for the confirmation of Judge Thomas.
And my inclination was based on my support of conservative nominees to the Court. I believe that if there is to be a liberal body, it is to be the legislative body. I believe that the Court should be conservative. And I was impressed to hear Judge Thomas say, as reported in the newspapers, that he believed his role as a judge to be that of interpreting the Constitution and the laws of the United States, not that of rewriting or remaking the laws.
I did not like the Warren Court and have so stated many times on this floor.
I prepared a statement in support of the confirmation of Judge Thomas. And when I left the Hill on Thursday evening after working in the Interior Appropriations Conferences for two days, I left my speech in support of Judge Thomas on my desk, prepared to state today that I was going to vote for Judge Thomas to be an associate justice on the United States Supreme Court.
Mr. President, I watched the hearings at home on my television set. I know I've said that if we want to improve the education of our young people we should throw out the television sets or at least cut down the time that our youngsters view them, but in this instance, my daughter asked me what I was going to do with my television set because I sat there glued to that television set all of Friday into the wee hours of the night, Saturday into the wee hours of the morning. I watched every minute of the hearings with the exception of 15 minutes. On Sunday, Mr. Dole and Mr. Mitchell were on one of the talk -- one of the news -- one of the programs, and they went over 15 minutes beyond 12:00 and that was the reason I missed 15 minutes of what was happening in the large caucus room in the Russell Building.
I taped the testimony of Anita Hill and I taped the testimony of Judge Thomas, and I taped their appearances and I have replayed them. This is a very extraordinary case. I know of no precedence of this kind, nothing similar, certainly on all fours or even approaching that.
Millions of eyes all over this country have been watching the hearings. Millions of ears have been listening to the hearings. And in listening to the call-in shows, C-SPAN, I've listened to what the people are saying. They're interested, they're watching, they're listening. And they've been quick to say that they've made up their minds, in most instances, one way or the other. I've read about the polls -- what the polls are indicating that the people out beyond the beltway are thinking.
Mr. President, I have concluded that I shall vote against the nomination of Judge Thomas. Before going into the reasons, let me compliment Joe Biden -- Senator Biden and Senator Thurmond on the fairness which they demonstrated throughout the televised hearings -- to the witnesses, to the nominee, and to their colleagues. It was a very difficult position, but Senator Biden, as Chairman of the Committee -- in particular -- had to maintain fairness, patience under great pressure, and in some cases, under provocation. And so I do want to commend the Chairman and Ranking Member.
I was formerly a member of the Judiciary Committee for several years. I am no longer a member. I am concerned about the atrocious, abominable leak that occurred, from what I am told, and hear, and read. It was a detestable thing to do. I do not know who is responsible -- whether it is a senator or a staff person -- that is not my province to make a judgment in that situation.
But it reflected very adversely upon the committee, and I'm sorry that it has reflected on the Senate, as well. I can understand the outrage that has been expressed by committee members and others. I can understand the embittered feelings and expressions by Judge Thomas. It was a reprehensible, underhanded thing to do. And all indications are that it came from the Demcratic side. So I detest that happening. I can understand, as I say the feelings of astonishment, outrage. But I want to echo what the Majority Leader said. If it's an outrage for a leak to occur in the Judiciary Committee, it is also an outrage for a leak to occur in the Ethics Committee. And I must echo the statements, at least as I understood them, by the Majority Leader. We heard no sense of outrage when they occurred in the Ethics Committee. Now two wrongs don't make a right and one wrong doesn't make a right. But the outrage should pervade the chamber on both sides of the aisle and in both cases, because he who the sword of heaven will bear should be as holy as severe.
Now as to my reasons for the conclusion that I have reached to vote against Judge Thomas. I believe Anita Hill. I believe what she said. I watched her on that screen intensely and I replayed as I have already said her appearance and her statement. I did not see on that face the knotted brow of satanic revenge. I did not see a face that was contorted with hate. I did not hear a voice that was tremulous with passion. I saw the face of a woman, one of 13 in a family of southern Blacks who grew up on the farm and who belonged to the church, who belongs to the church today and who was evidently reared by religious parents. We all saw them as they came into the hearing room -- the aging father, the kind mother hugging their daughter, give her succor and comfort in her hour of trial.
I saw an individual who did not flinch, who showed no nervousness, who spoke calmly throughout, dispassionately and who answered difficult questions. Some thought there were inconsistencies, but a careful reading of the exact language of the questions that were put to her can at least in one case and perhaps in others explain the apparent -- the appearance of an inconsistency in what she was saying in response to that question.
I won't go into details here, but it is very easy to charge an inconsistency in asking questions. But I thought that Anita Hill was thoughtful, reflective and truthful. That was my impression.
Granted, let's say then, that there may have been a few inconsistencies, granted for the sake of those that think there were. That doesn't mean that she was lying. That doesn't mean that her charges were not true. Perhaps longer hearings would have given her the opportunity and the committee the opportunity to clarify whatever seeming inconsistencies there might have been to the satisfaction of those who held them.
She was a reluctant witness. There are those who say, "Well, why didn't she come forward in the previous confirmation hearings?" She wasn't contacted in the previous hearings. They will contend, "Why did she wait 10 years?" The fact that she waited 10 years does not negate the truth of her assertion. She explained why she waited. She explained that she was reluctant to come forward. She explained that she didn't want to go forward. She explained that she didn't even want to be there in that large chamber in the Russell Building that day and at that time.
She explained that she had spoken to other individuals early on, '81, '82, '83, '87, and those same persons came forward later and corroborated the fact that she had talked about this early on. Well, why didn't she file a claim? She stated her reasons. She said that perhaps she used poor judgment. How many in this chamber have not used poor judgment? Who can stand in this chamber and say, "I have never used poor judgment"? And at the age of 25 one can understand that an individual might be more vulnerable to failing to use good judgment. She had her reasons.
One might ask why didn't Procopius write his secret history while Justinian was living? Procopius wrote about the profligacy, the harlotry, the dishonesty, the crimes committed by Justinian and Theodora, his harlot wife. He wrote about the same kind of profligacy and harlotry and crimes committed by Antonina, the wife of Belsarius, the great Roman general who served under Justinian. Why didn't he -- why did he -- when he wrote his earlier histories, when he wrote his work on buildings, giving such great credit to Justinian for his work on public buildings and great edifaces, why did he not then write about these secret matters, concerning which he knew because he lived right in the time, having been born around 500 A.D., having died around 565 A.D.?
He knew of what he spoke, but he didn't dare, for his own reasons, to write the secret history and to publish it. And he stated -- he stated why he didn't, because he knew that his life would be gone. He knew that he would be subjected to torture and death, and the confiscation of his property, perhaps the destruction of his family had he published those things before Justinian died and before Theodora died, and before Bellasarius died.
So there are reasons -- there are reasons and as far as I am concerned, without going into them in detail here, everybody has heard the -- what has been said, I will not go into them here. They talk about fantasies. The Dean of Oral Roberts University explained that perhaps the use of the word -- he had regretted the use of the word "fantasy." He had regretted the use of it. It was just something that came out at the moment.
This woman was not fantasizing. As one who has been in -- lived a long life and who has had the opportunity to see many people in this life and all walks of life, I think I have some ability to judge another person when I listen to that person, when I look into his eyes to determine in my own view what he is fantasizing, whether he is out of his mind, whether he is some kind of nut, whether he is a psychopath. It comes through. None of that came through in Anita Hill's statements.
Then, they talk about a conspiracy, special interest groups got to her, or that she invented this, it's just something that she made up, a woman spurned, a woman scorned. I don't believe that any reasonable man could carefully look at that woman's face or listen to what she had to say and in the whole context of the circumstances and believe that she was inventing this story.
Suddenly at this last moment she came, she invented this story. She had no knowledge anyone was going to contact her about this. That came out of the blue. Truth is a powerful thing and sometimes it's a strange thing.
To those who wish to think of a confirmation hearing as a court case, as having the surroundings and carrying the environment of a trial, one may -- (long pause) -- see things, perhaps differently. This is not a court case. This is a confirmation hearing. They say, well there was nobody else [who] said this. There was no pattern. Wouldn't it be reasonable to believe that there would be a pattern? If this man were like this wouldn't he be saying this thing to others?
Well, who knows? Perhaps he did. I am not going to say he did, I don't know. But since the flights of imagination seem to be rampant around here, one might imagine that possibly there is somebody else. And even so, if there was no other person, is it not possible that this could have happened in this case? That this could have happened just this once? Of course it is possible.
One may say, well, it was not probable. One doesn't know about that.
Mr. President, what are my other reasons? Aside from believing Anita Hill, I was offended by Judge Thomas's stonewalling the committee. He said he wanted to come back before the committee and clear his name. That's what I heard. He wanted to clear his name. He was given the opportunity to clear his name. But he didn't even listen to the principal witness, the only witness against him. He said he couldn't listen to it. He was tired of lies. What kind of judicial temperament does that demonstrate? He didn't listen to it.
What Senator can imagine that if he was the object of scrutiny in that situation that he would not have listened to the witness so that he would know how to respond, how to defend himself, how to clear his name. But instead of that, he came back and said he didn't even listen. He set up a wall when he did that, because it made it extremely difficult for members of the committee to ask him, "What did you think about this or that that she said?" He wanted to clear his name.
I know that hindsight is great, and I would imagine that most of the members of that committee wish they had asked for a week's delay. That should have been done. But that's gone. Perhaps much of this could have been avoided with a week's delay and by calling in the two persons -- principal persons here, talking with them in private. But again, that's water over the dam. We have only what happened, the circumstances, to deal with, and he asked to come back to clear his name. I was extremely disappoined and astonished, as a matter of fact, when he came back and said he hadn't listened, hadn't listened to Anita Hill.
But by refusing to watch her testimony, he put up a wall between himself and the committee. How could the committee question him? How could the committee learn the truth if the accused refused even to hear the charges? What does this say about the conduct of a judge? He is a judge. Now. A circuit court of appeals judge. What does this say about the conduct of a judge? A man whose primary function in his professional life is to listen to the evidence, to listen to both sides, whether plaintiff or defendant in a civil case, or prosecutor and the accused in a criminal case.
I have substantial doubts after this episode about the judicial temperament of Judge Thomas, doubts that I did not have prior to this weekend's hearing. How can we have confidence, if he is confirmed, that he will be an objective judge, willing to decide cases based on the evidence presented, if the one case that has mattered most to him in his lifetime, he shut his eyes and closed his ears and closed his mind and didn't even bother to watch the sworn testimony of Anita Hill? She was testifying under oath. He professed to want nothing more than to clear his name, yet he could not be bothered to even hear what the allegations were from the person who was making the allegations.
Another reason why I shall vote against Judge Thomas, he not only effectively stonewalled the committee, he just in the main made his speeches before the committee. He mounted his own defense by charging that the committee proceedings were high-tech lynching of uppity blacks. Now, Mr. President, in my judgment, that was an attempt to shift the ground. That was an attempt to fire the prejudices of race hatred, shift it to a matter involving race.
And I, frankly, was offended by his injection of racism into these hearings. It was a diversionary tactic intended to divert both the committee's and the American public's attention away from the issue at hand, the issue being which one is telling the truth. I was offended by that. I thought we were past that stage.
So, instead of focusing on the charges and attempting to be helpful to the committee -- of course he was embittered by the leak and he could have so stated, but he indicted the whole committee and he indicted the Senate and he indicted the process. Not everybody's guilty. I didn't leak the -- I didn't leak anything to the press. But he impugned me. And he imputed to me and to you, Senator Sasser -- you were not on the committee -- and to you, Senator Pryor -- you're not on the committee -- to you, Senator Bradley -- you're not on the committee. He didn't make any -- he didn't make any difference. He didn't discriminate among us. We're all guilty. He was bitter at the Senate, at the committee, at the process.
He could have been bitter at the person or persons who leaked whatever it was that was leaked, and could have so stated, in the strongest terms. But, instead, he lectured the committee. He found fault with the process. The process is a constitutional process that was determined by our forefathers, who sat in Philadelphia in 1787. That's the process.
And it is because of the process that Judge Thomas was given his day to clear his name, it is because of the process that he was able to overcome poverty, it is because of the process that he was able to stay out of prison in this country, that he was able to get that fine education. It was because of process, it was because of the process that we -- he was heard before a committee and given an opportunity to answer questions, given an opportunity to clear his name. That's the process.
Now if we're talking -- if we're only talking about the leaks, then that's something else. But one can condemn the leaks without condemning the committee, without condemning the Senate.
He tried to shift the ground, and I think it was blatant intimidation, and I'm sorry to say I think it worked. I sat there and I wondered, who is going to ask him some tough questions. Are they afraid of it? He said to Senator Metzenbaum -- I believe it was -- "God is my judge. You're not my judge, Senator." Well, of course, God is my judge. I'm not God. But I do have a vote, and I have a responsibility to make a determination as to how I shall vote. And that kind of talk, that kind of arrogance will never get my vote.
I don't know who -- I'll say it again -- I have no idea. I can't prove any -- that any particular senator did this, can't prove he didn't. But I have doubts that 14 senators did it, I have doubts that 13 did it, or that 12, or 10, or 8, 6, 5, 4, 3, 2 -- but they didn't all do it, and to condemn, and to repudiate, and excoriate the committee, the Senate, and the process, went too far.
Now leaks are deplorable, they're reprehensible, and I know -- we're all going to say, "Let's do something about 'em." But human nature has never changed, since God drove Adam and Eve from the garden, and said, "In the sweat of thy brow shalt thou eat bread." And he created the serpent. He said, "You will bruise the head of that serpent, and he will bruise your heel."
There will always be leaks. We ought to do whatever we can do to prevent them, and if we can find the senator who -- if it were -- if it -- I say, if it was a senator -- if that can be proved, I'll be among the first to vote to expel him. If it was a staff member, I can't vote to expel him, I simply think he ought to be fired. But there will always be leaks -- always. But the unfortunate way in which this information has come to light should not be enough to cause us to disregard the possible relevancy, the possible relevancy and the possible accuracy of a charge which so pertains to the character and the temperament of an individual being considered for this august and powerful position. Now, let me say, Mr. President, to my colleagues, this is a powerful position to which he is being appointed, if he is appointed. And I don't have any doubt that the Senate will confirm him. I said I didn't come here to debate the matter. I don't think I'm going to change anyone's minds, but I'm going to make my statement. Judge Thomas made his in no uncertain terms, so I'm going to make mine.
And I want to compliment the Chairman. I don't think he was intimidated. I don't think that the Chairman was intimidated. I watched him carefully. If a person wants to clear his name, why should committee members be intimidated by that person? If I had previously said that I would vote for him, I would have changed my position on that committee. But so many of the Democrats had already said they were against him, they voted against him, so -- And they couldn't help that -- they didn't realize this was coming.
But to an extent, it put them in a difficult position to question, because everybody knew where they were coming from. I'm sure that was their feeling, "Everybody knows where I'm coming from, so -- I've already said I'm against him. So to that extent it sort of taints my questions."
I'm very sorry that the matter of race was injected here, not in the effort to clear one's name but in the effort to shift the ground. And so, instead of making an effort to clear his name in the minds of the committee members and in the minds of other senators who were not on the committee, he shifted the blame to the process and to race prejudice. I think it was preposterous. A black American woman was making the charge against a black American male. Where is the racism? Nonsense. Nonsense.
Now, Mr. President -- oh, I was momentarily distracted. (Pause.) Now this -- I will get to my last stated reason for voting against Judge Thomas. This question of giving the benefit of the doubt. I've heard it said, "Well, you should give the benefit of the doubt -- if you have a doubt about this, and it's obvious that nobody can really say with certitude as to which one is telling the truth, the whoe truth, and nothing but the truth, so help him or her God -- then we should give the benefit to Judge Thomas. He's the nominee."
Now, Mr. President, of all the excuses for voting for Judge Thomas, I think that is the weakest one I've heard. When are senators going to learn that this proceeding was not being made in a court of law? This was not a civil case, it was not a criminal case, where there are various standards of doubt, beyond a reasonable doubt, so on and so on. If you have a doubt, it should be given to Thomas. Why? This is a confirmation process. We're talking about someone who was nominated for one of the most powerful positions in this country. Some would say, "Well, he'll only be one of nine men." (Laughs ironically.) Suppose it's a divided Court, four to four. That one man will make the difference. Suppose it's a divided Court and he doesn't show up for some reason -- he doesn't act on the matter. That tie is in essence a decision in some cases. And his decision will affect millions of Americans -- black, white, minorities, the majority, women, men, children, in all aspects of living -- social security, workmen's compensation, whatever it might be that might get to the Supreme Court of the United States. That one man in that instance will have more power than 100 senators -- more power in that instance than the President of the United States.
This is not a justice of the peace. This is a man who is being nominated to go on the highest court of the land. Give HIM the benefit of the doubt?! He has no particular right to this seat! No individual has a particular right to a Supreme Court seat! Why give HIM the benefit of the doubt?!
Such an honor of sitting on the Supreme Court of the United States should be reserved for only those who are most qualified and those whose temperament and character best reflect judicial and personal commitments to excellence. A credible charge of the type that has been leveled at Judge Thomas is enough, in my view, to mandate that we ought to look for a more exemplary nominee.
If we're going to give the benefit of the doubt, let's give it to the Court. Let's give it to the country. He who professed, "You may kill me. Look what you're doing to me -- but what you're doing to my country." And so I will take that, I'll accept that.
If Judge Thomas is rejected, he won't lose his life, he won't lose his property, he won't lose his liberty. He'll go on being a judge on the appellate court, the youngest judge on the Court, driving his car, mowing his grass, going to McDonalds, eating a Big Mac, and living his life -- watching his son play football -- and I don't say any of those things pejoratively -- of course I prefer to say pee-joratively -- I don't say those things in that sense. But that's his word. Those are his words.
So why should we give the benefit of the doubt to him? He won't have to worry about a job. You can't take his job away from him, except through impeachment -- through the impeachment process. He'll be a judge for life, and his salary is inviolable -- you can't cut it.
But he'll be on that Court 30 years if he lives out the Psalmist span of life. And he will affect the lives of millions. He'll make decisions which will impact on their ability to own a car or even to eat a Big Mac. Their liberties, their lives, their properties will be in his hands.
Now, if there's a cloud of doubt, this is the last chance. He's not running for the United States Senate, where there'd be another chance in six years. He's not running for the House of Representatives, where there'll be another chance in two years. He's not even running; he's been nominated to the Supreme Court of the United States, and if he is not rejected, which I predict he will not be rejected -- I think too many have made up their minds. I think too many have been swayed by this argument about the benefit of the doubt. This is the last clear chance, to use a bit of legal terminology. This is it. You'll live with this decision the next 30 years.
I realize that it's possible that in the process a man could have been wronged. But, if it were a criminal trial, it would be different. That is what it is not.
And then, this final argument that I saw in the Washington Post editorial this morning to the effect that there should be two -- I don't have it in front of me, but the gist of it was, as I got it, was that there need to be two witnesses, or some such. I don't have it, perhaps I -- I want to be exact. "It goes" -- I'm reading only a sentence and I'll ask that the whole -- at the end of my statement, I'll ask that the entire editorial be included in the record. "It goes against a tradition which holds that the unproven word of a single accuser is not enough to establish guilt."
Well, there we are in the court setting again. This is a confirmation process. Under the old English law and the law of our forefathers, our law today, in the case of treason, one witness is not enough. But that's a case in which one -- which under the English law was a criminal trial, impeachment. A criminal trial. He could lose his life. He could be banished. He could lose his liberty. He could lose his property. He could lose them all. That was a criminal trial. That was a criminal trial under the old English law. And so, that was transferred into the statute of treasons, I believe in 1357 or along thereabout, and it came on down to, in our Constitution, you have to have two witnesses to a treasonous act. And so, we have a tradition which holds that the unproven word of a single accuser is not enough to establish guilt. And the closing sentence, "In these circumstances, history gives us too many reasons not to act on the unproven word of a single accuser." Again, we're talking about a court setting. History -- I defy that statement. History does not give us any reasons not to act on the unproven word of a single accuser in the confirmation of a nominee.
So, let's don't get all confused about what we're doing. This is a confirmation process. And if there's a doubt, I say resolve it in the interest of our country, its future, in the interest of the Court. Let's don't have a cloud of doubt over someone who is going to come on that court and be there for many years.
May I close, Mr. President, and I want to close in talking just briefly again about the process, the process in the larger sense. And it's easy to blame the process and to avoid the issue, but in my judgment, that doesn't clear Judge Thomas's name. This is the excellent foppery of the world, that when we are sick in fortune, often by surfeit of our own behavior, we make guilty of our disasters the Sun, the Moon and the stars. Shakespeare went from King Lear to Julius Caesar, when Cassius said to Brutus: "The fault, dear Brutus, is not in our stars but in ourselves, that we are underlings." So let's, as was said in the hearings from time to time, let's keep our eye on the ball.
We're going to cast a very important vote today. And it's not like sin in the sense that one may be forgiven for it. One may be forgiven for the most terrible sins, but once this vote is cast, we have no recourse for restoration.
I've tried to speak from the head, and Mr. President, my heart tells me that I'm right. I will not attempt to criticize any other senator's vote. Every senator has not only the right but the duty to vote as he sees fit. In Milton's "Paradise Lost," man was described as having a will. He has the power of the will. Nobody will stand like the Persian monarchs behind their soldiers or behind senators and lash them into battle. No one will dig trenches behind them to keep them from retreating. It's up to every senator. And every senator can justify his position any way he wishes. As I say, I'm not here to debate, I'm not here to attempt to change men's minds or women's minds. I'm here to state my own sound views as I see them through my life's and after having carefully weighed this matter, after having gone from a supporter of Judge Thomas for the reasons I have said -- and my speech will be in the record to show the reasons why I was supporting him -- having gone from that position to the position I have stated today. And I, too, believe that it is my country that would be hurt in the event Judge Thomas goes on the Court.
Perhaps we need to clean up the process if we can, but the process, quote, end quote, "is a constitutional process," and it has done us well for over two centuries. And as far as I'm concerned the benefit of the doubt, (shall go to ?) the Court and to my children and to my grandchildren and to my country.