Law & the Courts

Another Anonymous Allegation amid a Bungled Process

Senator Chuck Grassley (R, Iowa) listens to Senator Dianna Feinstein (D, Calif.) at the Senate Judiciary Committee hearing on the nomination of Brett Kavanaugh on Capitol Hill in Washington, D.C., September 27, 2018. (Michael Reynolds/Reuters )
Grassley could have told committee Democrats that, having abused the process, they had waived the right to present more evidence.

My main concerns all along about the Kavanaugh confirmation hearing have been (1) abuse of the process and (2) relatedly, the more delay you permit, the more delay you will have — which matters when one side’s objective is, precisely, delay.

Following Wednesday’s Avenatti circus, ably chronicled in our editorial, there has now been a fourth allegation lodged against Judge Kavanaugh. This one is wholly anonymous, coming into the office of Senator Cory Gardner (R., Colo.) with no attribution and no contact information. According to NBC News, the letter alleges that in 1998, an inebriated Kavanaugh, then 33 years old and a partner at a prominent D.C. law firm, got rough with an unidentified woman outside a Washington bar.

The woman making the accusation is not the woman who was allegedly assaulted; nor did she even see the alleged assault. She claims, instead, that she is the mother of a friend of the victim. The friend is said to have witnessed the incident — in which the victim was “shoved . . . up against the wall very aggressively and sexually,” whatever that means.

The complainant maintains that there were at least four witnesses, including her daughter, all of whom were drinking. None of them, nor the victim (described as “still traumatized” after 20 years), has come forward or identified anyone involved.

Senator Gardner says his office, which does not ordinarily share the content of correspondence, notified the Judiciary Committee (of which he is not a member) because it has jurisdiction over the Kavanaugh confirmation. The letter was thus shared with Democratic and Republican staffers. NBC did not say how it obtained a copy of the letter.

Each passing day now, we see the wages of abuse of the committee process. In the best of times, it is a commonplace for prominent people to be accused of misconduct. Some allegations are concrete and provide real investigative leads. Others are empty smears. There is a process in place for the FBI and committee staff, which is well-resourced at taxpayer expense, to vet these allegations. By the time a nominee testifies, decisions have been made about what matters are worth pursuing — in public hearings and private sessions — and which additional witnesses could add value with committee testimony (as opposed to written submissions).

As I pointed out again on Wednesday, this confirmation process is not supposed to be a trial. It is not supposed to resemble a criminal investigation. The objective is to assemble enough information that the Senate can exercise its constitutional advice-and-consent function — so senators can responsibly decide whether to approve the nomination. The point is not to resolve every claim or render a “guilty” or “not guilty” verdict.

Here Democrats willfully thwarted the process and Republicans let them get away with it. Rather than submitting Christine Blasey Ford’s allegations to the process, Senator Feinstein sat on them, then sprang them at the last second, after Kavanaugh met with any senator who would meet him privately (apparently 65 did), gave 31 hours of masterful testimony, and appeared poised to have his nomination approved by the committee, albeit on a party-line vote.

Committee chairman Chuck Grassley could have told committee Democrats that, having abused the process (after making a despicable circus out of the hearing), the minority had waived the right to present more evidence. Of course, Grassley has the thinnest of margins; thus, he had to weigh the fact that Republican moderates (including those sensitive to the party’s standing among women) were less concerned about procedural regularity than with the potential perception that the committee had given a wronged woman the back of the hand. But any solicitude was going come with costs — that’s why leadership jobs are hard.

Rather than allowing the process to be derailed, Chairman Grassley could have invited Dr. Ford and Judge Kavanaugh to submit affidavits for the record. Or, if Grassley felt he had to hold a hearing, he could have set it on a short date and given Ford a choice: Show up and testify, content herself with submitting a sworn statement, or decline to participate. Meantime, a vote could have been scheduled and held right after the short hearing date — after all, this exhibition is optics, it is not actually about changing anyone’s mind. Democrats would have cried foul through their media megaphone; Republican moderates would have whined. But the blunt fact would remain: Democrats strategically orchestrated this sideshow, and there has already been more relevant information amassed about Kavanaugh than about any nominee in the nation’s history. It was past time to vote — to dare GOP moderates to be the ones to block Kavanaugh’s nomination, because the moderates are not going to grow more backbone with more delay.

Instead, Senator Grassley decided to bend over backwards to show how fair he and Republicans are. He negotiated terms with Ford’s counsel — empowering them as if they had cards to play. He indulged demands for delay, postponing the vote. Naturally, the delay undermined any sense that there is a procedure for raising allegations — to ensure that they are timely raised, that they are subjected to a vetting process to separate corroborated accusations from unsupported slander. This made more unverifiable smears inevitable, and created an expectation that there must be more delay while the new smears are investigated.

Meanwhile, the point of the hearing was lost. It is no longer about whether there is enough information for senators to exercise their constitutional advice-and-consent function. It is a Kafkaesque criminal trial in which Kavanaugh must establish his innocence, his accusers must be presumed credible because of our #MeToo moment, and nothing dispositive can happen until the FBI conducts a full-blown investigation of decades-old allegations of state-law offenses that the Bureau has no jurisdiction over, and that no state would proceed on because doing so would offend the Constitution’s speedy trial guarantee and state statutes of limitations.

You want to say Grassley had no choice? I’m not buying it. There is always a choice, and when you make the short-term easy one (What’s the harm in letting them have their hearing? What’s the harm in engaging in extended negotiations over a witness’s presumptuous, outlandish demands rather than issuing a subpoena and getting on with it?), you are responsible for the foreseeable, inevitable long-term consequences — more delay, more demands for investigation, more public doubt about a patently qualified nominee’s legitimacy.

That’s where we are today, with a hearing that could be, at most, just the end of the beginning, not the beginning of the end.

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