Law & the Courts

If Kavanaugh’s Accuser Won’t Testify, the Senate Should Vote

Supreme Court nominee Judge Brett Kavanaugh testifies during the third day of his confirmation hearing before the Senate Judiciary Committee, September 6, 2018. (Alex Wroblewski/Reuters)

On Monday, Judiciary Committee chairman Chuck Grassley announced that the Senate would take the extraordinary measure of holding hearings on Christine Blasey Ford’s allegation against Brett Kavanaugh. The straightforward plan was for Ford and Kavanaugh to testify under oath. But Ford never accepted Grassley’s invitation to testify, and now, apparently, has cold feet. Both Ford’s attorney and Senate Democrats are saying that no hearing should take place until a law-enforcement investigation is completed.

Republicans should reject this transparent attempt to delay the confirmation. The invitation to Ford ought to stand for now, but if she does not agree to testify, the Senate should vote on Kavanaugh’s confirmation as expeditiously as possible.

Ford says she will appear before the committee — which has offered to hold either a private or public hearing — on the condition that “law-enforcement officials” conduct “a full investigation.” Her attorney, Debra Katz, says such an investigation is necessary to ensure that the committee assesses her allegation in a “nonpartisan” manner. This has quickly become the Democratic party line, with Senators Chuck Schumer and Dianne Feinstein arguing that no testimony should occur until the FBI investigates — and blaming Republicans for supposedly blocking an FBI investigation.

That is laughable. As Justice Department spokeswoman Sarah Flores says, and as Democrats know full well, there is no possible federal crime being alleged here. This is perhaps why Katz is keeping her demands vague, although Maryland authorities are exceedingly unlikely to open an investigation on a 36-year-old allegation for which there are scant details and less hard evidence.

Democratic politicians and some in the media have argued that just as the White House directed the FBI to investigate the Anita Hill allegation in 1991, so should Donald Trump direct the FBI to investigate Ford’s account. But the FBI has already considered Ford’s charge, after Feinstein forwarded it to the bureau. It declined to open criminal proceedings and merely added the information to Kavanaugh’s background-check file. What’s more, both Hill and Clarence Thomas were federal employees when the alleged sexual harassment was supposed to have transpired, giving the FBI a reason to look into the incident that it obviously does not have for a decades-old possible violation of Maryland state law.

It is worth remembering that Ford brought her allegation to the attention of the Washington Post and Feinstein in July, and retained a lawyer weeks ago. While neither the Post, nor Feinstein, nor Katz has uncovered serious corroborating evidence, the discrepancies in her account of the assault continue to add up: The latest is that Patrick Smyth, who Ford says was at the party in question, denies ever being there.

In any case, a hearing before the Judiciary Committee would be an appropriate way for the Senate to gauge the accuracy of this accusation. Just as evidence supporting Kavanaugh’s denial has been brought to the committee via letters from Smyth and Mark Judge, Ford could marshal evidence in her own behalf in testimony. Instead, her attorney and the Democrats appear to have coalesced around the unprecedented demand of an unbounded investigation by an agency that has no business investigating allegations like this one. If Ford continues to decline to testify, then Republicans should move ahead with the confirmation vote. An unanswered invitation is no reason to bring the nation’s affairs to a halt.