Law & the Courts

No Hearing; Just Vote on Kavanaugh Nomination

Sen. Chuck Grassley and Sen. Dianne Feinstein talk during Supreme Court nominee Brett Kavanaugh’s confirmation hearing, September 4, 2018. (Joshua Roberts/Reuters)
This is about preventing a conservative justice from being added to the Supreme Court, nothing more.

Senate Democrats’ blatant abuse of the hearing process, their “delay, delay, delay” strategy, continues to pay dividends. Putting a stop to it would be long overdue.

Thursday was the day Judge Brett Kavanaugh’s manifestly meritorious nomination to the Supreme Court should have been voted out of the Senate Judiciary Committee and sent to the full Senate. Instead the nomination languishes because of an eleventh-hour stunt pulled by committee Democrats — led by ranking member Senator Dianne Feinstein (D., Calif.).

Notwithstanding that Feinstein was well aware almost three months ago of a flimsily supported allegation against Kavanaugh — to wit, that 36 years ago, as a 17-year-old high school student, he groped and tried to force himself on a 15-year-old girl at an underage beer party — the senator sat on the information rather than submitting it to the hearing process. Although she met face-to-face with Kavanaugh and later questioned him when he was under oath at the hearing, Feinstein did not utter a word about the ancient, unverifiable claim to Kavanaugh.

Instead, the senator referred the allegation to the FBI, without identifying the self-proclaimed witness, despite knowing that:

1) The FBI had no jurisdiction to investigate a state-law assault claim.

2) Even if the FBI had had jurisdiction, it is federal practice not to investigate and prosecute minors, especially for offenses that state authorities have jurisdiction over, except in rare circumstances involving heinous crimes.

3) Even if the FBI had had jurisdiction over the offense, the bureau would never have opened an investigation of a 36-year-old allegation, even if the evidence were strong.

4) Even though the FBI had jurisdiction to conduct a background investigation of Kavanaugh, such investigations are not occasions to trigger full-blown criminal investigations of crimes the Justice Department has no jurisdiction to prosecute, but rather result in a flagging of allegations for the Senate’s consideration (which has been done here).

5) Even though Maryland state and local authorities (to whom neither Senator Feinstein nor the alleged victim apparently referred the allegation) have jurisdiction over any conceivable statutory offenses in question, they would never have opened an investigation based on a sketchy allegation of 36-year-old misconduct for which the statute of limitations lapsed decades ago (i.e., a case it would be impossible to investigate and prosecute).

6) If Feinstein had raised the allegation in a timely manner, Kavanaugh would have been questioned about it during the hearing, the flimsiness of the claim would have been apparent, Kavanaugh’s unqualified denial would have been on the record, and the committee (including Democrats who had decided even before the hearing that they would vote against Kavanaugh even if the hearing established that he was Jesus of Nazareth in a robe) could weigh the allegation for what it was worth in voting on the nomination.

That is, if Democrats had not abused the process, there would already have been a vote on the nomination.

In other words, what Democrats have sought is delay. What Republicans are allowing them to have is delay. The contemptuous stall strategy is being rewarded.

And now, with Democrats having won a postponement of the scheduled Thursday vote, the latest pointless dispute is over whether there will be a hearing on Monday. Specifically, Christine Blasey Ford — an activist Democrat represented by activist Democratic lawyers, who has posited the allegation as to which she cannot recall such basic details as precisely where and when the purported assault happened, and who concedes never having mentioned it to anyone for 30 years — is playing games about when and whether she is willing to testify. This, despite having been invited to testify under circumstances in which Democrats had plainly waived any entitlement to raise her allegation. (Waiver is the legal effect of knowingly passing on a full and fair opportunity to raise an issue.)

As a result, Democrats calculate they have prevailed in seeking even more delay by means of these tactics — including posturing by Dr. Ford’s counsel to the effect that she is willing to testify at some later point, but not on Monday, and probably not until the FBI conducts a full-blown criminal investigation of an allegation the FBI would never investigate for the reasons described above. The transparent objective here is to procrastinate, not for investigative but for political reasons.

Bluntly, Democrats do not care about Dr. Ford. If she were lodging a similar complaint against, say, Congressman Keith Ellison (D., Minn.), she would not be heard, and the media would be pretending she did not exist. Democrats are exploiting Dr. Ford (or perhaps capitalizing with her willful complicity) because they believe they might win enough seats in the November midterms to take control of the Senate and, with a committee majority, defeat Kavanaugh’s nomination.

This is about preventing a conservative justice from being added to the Supreme Court, nothing more.

It is absurd for Republicans to let Democrats get away with this — to allow the alleged victim to dictate the terms of the investigation (something that never is permitted in ordinary investigations), while the minority dictates the terms of hearings and votes.

There is no conceivable way that Dr. Ford’s allegation can ever be resolved in the sense of a firm conclusion about what happened. The allegation is far too stale to support a prosecution. Ford cannot remember rudimentary details, while Kavanaugh and other witnesses strongly deny that the incident happened. No matter how many hearings are held, we are never going to have a more definitive resolution than what we have now: Dr. Ford insists, not very convincingly, that it happened; Judge Kavanaugh forcefully insists that it did not; and other evidence developed at the hearing indicates without establishing (for it will never be possible to establish) that Kavanaugh should be credited. Overwhelming evidence establishes, moreover, that Kavanaugh is, in any event, a meritorious nominee.

Why is this important? Because it demonstrates conclusively that there is no reason to have a hearing. The only time it is necessary to hold a hearing is when some potentially dispositive issue is capable of resolution. Ford’s allegation is not capable of resolution. It is inevitably destined for an inconclusive outcome, regardless of whether Ford testifies.

At this overdue point, then, the committee majority should simply force a vote. There is no need for an inconclusive hearing. Democrats’ simultaneous demand for a hearing and interminable postponement of a hearing is just a stalling tactic. There is no reason to abide further delay. Delay is just additional reward for the Democrats’ contemptuous abuse of the committee hearing process, which means additional incentive for Democrats to continue such abuse.

If the committee insists on proceeding with a pointless hearing, a subpoena should be issued to Dr. Ford, compelling her appearance before the committee on Monday, with the caveat that the committee will accept an affidavit in lieu of a personal appearance. (If such an affidavit unexpectedly raises any new issues, the committee can always revisit the question of compelling Ford’s appearance.) The committee should further spell out to Ford that, should she choose to submit an affidavit or decline to honor the subpoena, the committee is unlikely to hold her in contempt but is certain to draw a negative inference from her refusal to submit to questioning after creating tumult with her allegation.

In no event should there be any further delay. The Supreme Court term begins in a couple of weeks, and it should begin with a full complement of justices. That is more consequential to the country than the comfort level of Dr. Ford’s lawyers.

Senator Chuck Grassley (R., Iowa), the committee chairman, should have held a vote on Thursday, and should hold a vote on Friday or over the weekend. If Republicans are too timid to do this — i.e., if Republicans lack the fortitude to defend their own proceedings, and if they decide instead to keep encouraging Democratic obstructionism — Grassley should at least issue the subpoena (as described above) directing Ford to appear on Monday. A (wholly unnecessary) hearing should be scheduled for Monday with the understanding that the committee will proceed to a vote at the hearing’s conclusion.

Democrats are in no position to complain that Republicans have already made up their minds (though they will, of course, complain because complaints, echoed by the media-Democrat complex, often cow the opposition into delay).

It is time to stop playing games. This confirmation process, coupled with Kavanaugh’s ample record as a judge, has developed more information about the fitness of this nominee than any confirmation process in American history. It is time to vote. Past time.