When Americans went to bed last night, the path forward in the Brett Kavanaugh nomination battle seemed set. On Monday, the Senate Judiciary Committee — and the nation — would have an opportunity to watch Kavanaugh and Christine Blasey Ford testify, under oath, about Ford’s claim that Kavanaugh brutally assaulted her at a high-school party in the early 1980s. Crucially, both Kavanaugh and Ford would be subject to no-doubt-tough cross-examination.
But then, by Tuesday morning, there was a shift. My former NR colleague Eliana Johnson reported that Ford had not yet agreed to testify:
Senate Judiciary Chairman Chuck Grassley (R-Iowa) said that his staff has reached out to Christine Blasey Ford’s camp several times since the California-based professor came forward with her story of a high-school-era assault by President Donald Trump’s high court pick. Although Ford’s lawyer said that her client would be open to “a fair proceeding,” it remains unclear whether she would agree to a planned hearing on Sept. 24 that Republicans have set up to help save Kavanaugh’s nomination.
Indeed, there was even an indication that her attorney was attempting to impose “serious conditions” on her testimony. Another source said they believed there was only a “50 percent chance she’d testify” before the full committee and “just a 25 percent chance she’d appear at a public hearing.”
Then, today, Dianne Feinstein called for a “full” FBI investigation before a committee hearing. Keep in mind, this is the same person who knew about Ford’s claims for weeks before they were made public on Sunday. Did her staff investigate the claims? If so, what was the result of that investigation?
Senator Mazie Hirono (D., Hawaii) echoed the same demand, calling for an “FBI report.” The Department of Justice, however, has said that “the purpose of a background investigation is to determine whether the nominee could pose a risk to the national security of the United States. The allegation does not involve any potential federal crime. The FBI’s role in such matters is to provide information for the use of the decision makers.” In other words, no further investigation is forthcoming.
The DOJ is right. It is not the FBI’s role to investigate the veracity of 36-year-old state-level criminal claims. But this is a red herring. Ford is entirely capable of telling her story — and facing senators’ questions — without the involvement of the FBI. It is imperative that she appear before the committee to testify.
It is of course extraordinarily difficult for any person to face cross-examination. It’s even more difficult when facing examination based on memories so painful and so far in the distant past. It takes an immense act of will to stand in front of a Senate committee, swear to tell the truth, and then answer all relevant questions. But it’s an act of will that’s foundational to our system of justice.
It is to America’s credit that we are increasingly creating a culture that empowers and supports alleged victims, granting them the opportunity to make a formal accusation no matter how powerful the accused. It will be to America’s great shame, however, if we abandon or weaken protections for the accused. Indeed, in those places (like college campuses) where we’ve weakened due process, unfairness and injustice have followed as night follows day. Under our court system, even if an accuser seeks only money, the accused has an opportunity to depose and cross-examine the accuser, and the accuser bears the burden of proof.
Here, Christine Blasey Ford has made an accusation that is more serious than any demand for money. Her claims, if sufficiently credible, could alter the course of American history. There is no reason why they can’t be tested, in an open hearing, with the eyes of the nation on her. It will of course be hard, but no harder than what we ask of victims and plaintiffs in countless other cases across the land.
At the same time, the Senate has its own responsibilities. The grandstanding and hectoring we witnessed in the first round of Kavanaugh hearings would be rendered doubly shameful in this circumstance. Senators, many of whom love the limelight almost as much as they love life itself, should act with dignity and remember that they belong to what was once called the world’s greatest deliberative body. To that end, Republican senator Susan Collins (Maine) has an excellent idea:
I'm writing to the Chairman & RM of Judiciary Cmte respectfully recommending that at Monday’s hearing, counsel for Prof. Ford be allocated time to question Judge Kavanaugh & counsel for the Judge be granted equal time to question Prof. Ford, followed by questions from Senators.
— Sen. Susan Collins (@SenatorCollins) September 18, 2018
The least the Senate owes America is a competent and professional process. Opening the proceedings with questions from the outstanding attorneys involved in the case would give Americans a reasonable facsimile of a rigorous judicial proceeding. Follow-up questions from senators could be judged against the backdrop of that questioning.
If, however, Ford declines to testify — or imposes unreasonable conditions on her appearance — the committee should immediately proceed to a vote on Kavanaugh’s nomination and vote to confirm him without regard to her untested allegations. Any other course would set a terrible precedent, not just for judicial nominations but also for the very concept of due process itself. Simply put, individual justice matters, and individual justice is impossible when accusers refuse to put their claims to the test.