Law & the Courts

Republicans Should Not Have Delayed the Kavanaugh Vote

Senate Judiciary Committee members (from left) Orrin Hatch (R., Utah), Jeff Flake (R., Ariz.) and Chuck Grassley (R., Iowa), September 28, 2018. (Reuters/Jim Bourg)
They gave Democrats exactly what they wanted.

You have opponents whose first and only objective is delay. From the start of the confirmation proceedings on Judge Brett Kavanaugh’s nomination to the Supreme Court, those opponents, Senate Democrats, have thus pushed for delay. At every turn. Of course they never come out and say that’s what they’re doing — they never come out and say, “We’ve abused the confirmation process and dropped a bomb at the eleventh hour, an uncorroborated, 36-year-old allegation of sexual assault, because we’re trying to delay the vote until after the midterms.” But delay is what they want.

It doesn’t matter what sheep’s clothing the wolf comes in; the wolf is always delay. When they say, “We’re protecting survivors,” they mean, “We want delay.” When they posture that “women must be believed,” their aim is more delay. When they say, “The FBI must investigate to remove any cloud over the nominee,” the translation is: “Give us a delay so we can come up with new reasons for delay.”

Get it?

Dems say, “potato,” they mean “delay”;
Dems say “tomato,” they mean delay;
Tomato, delay, potato, delay;
Let’s call the whole thing off.

So, finally, we get to a committee vote over two weeks after it should have happened; after reopening a hearing that involved 31 hours of testimony from the nominee; after 65 meetings with senators and followed by over 1,200 answers to post-hearing questions, more than the combined number of post-hearing questions in the history of Supreme Court nominations. We finally get Kavanaugh’s nomination voted out of committee. And then, as a final floor vote is about to be scheduled and debated, Republicans — taking their lead from the ineffable Jeff Flake — agree to accede to one more Democratic request (really, just one more, cross-our-hearts . . .). And what would that be?

What else? Another week of delay.

The rationale for this delay is priceless: We need an FBI investigation. It is understandable that the public does not realize how specious this demand is. But who would have thought Senate Republicans were in need of a civics lesson?

Let’s try to give them a brisk one.

The Constitution assigns the advice-and-consent function to the legislative branch. The FBI is a component of the executive branch. The constitutional powers of the legislature are not contingent on the cooperation of the executive. Moreover, the FBI did not exist until it was created by statute at the start of the 20th century, meaning the Senate was quite capably vetting judicial nominations for over a century before there was an FBI.

The Senate Judiciary Committee, which is charged with assessing judicial nominees, has one of the largest professional staffs of any committee on Capitol Hill. The staff includes many former federal prosecutors and investigators. The committee never needs to wait for the FBI; it can conduct its own, very thorough investigation of any judicial nominee.

In connection with appointments to the judiciary and executive-branch offices, the FBI assists the Senate by conducting background investigations of nominees. These investigations are not like criminal investigations, in which the FBI attempts to build a prosecution by developing proof beyond a reasonable doubt of the essential elements of federal penal offenses. The investigations are not like counterintelligence investigations, in which the FBI gathers intelligence about threats to American interests posed by foreign powers. In a background investigation, the FBI simply checks its indicies (such as its databank of rap sheets) and conducts interviews with colleagues, associates, neighbors, and other acquaintances of the nominee. The point is not to conduct criminal investigations of any allegations that develop — particularly not of state-law violations that may be time-barred for prosecution and that the FBI does not have jurisdiction to investigate anyway. The point is to flag issues for the Senate so that it may make a discriminating appraisal of the nominee’s professional competence and character.

In conducting a background check, the FBI does not draw a conclusion about a nominee’s suitability. If alleged misconduct is not the subject of a conviction or acquittal, the FBI does not make an assessment of guilt or innocence. To do these things would be to usurp the constitutional role of the Senate — it is the Senate, not the FBI, that decides whether a nominee is fit for the responsibilities of the office to which he is nominated.

Moreover, the Senate typically does not abdicate its responsibilities or judgment to executive agencies. If, for example, the FBI were to decide tomorrow that some state police agency had not committed a civil-rights violation for which it was being investigated following some racially charged incident, Democratic senators would revert to their default position of announcing that they would conduct their own investigation because the FBI is highly fallible. On most issues, Dianne Feinstein and Judiciary Committee Democrats do not suggest that the exercise of the Senate’s constitutional prerogatives must be suspended until Christopher Wray descends from Mount Sinai with the relevant tablets.

An FBI investigation of unsubstantiated allegations against Judge Kavanaugh would not resolve those allegations. If the FBI tried to resolve them but came out in Kavanaugh’s favor, Democrats would say the investigation was flawed — politicized by the Trump administration. But, in fact, the FBI would not try to resolve them; the bureau would simply interview some pertinent witnesses — if they agreed to speak to the FBI, which they would not be required to do. It would then pass the interview summaries along to the Judiciary Committee so that it could decide what probative value, if any, they had on the matter of Kavanaugh’s suitability. In other words, the FBI would only do exactly what the committee could do by itself — talk to people who might have germane information. There is nothing magical, dispositive, or conclusive about an FBI background investigation.

Judiciary Committee Democrats do not want an FBI investigation of allegations against Judge Kavanaugh because they think it will be especially illuminating or reliable. They want it because it will result in delay, giving them the breathing room necessary to come up with more reasons for delay.

So, naturally, Republicans are giving them their FBI investigation, and more delay.

Observing that the GOP majority is giving Democrats exactly what they want does not adequately convey how incompetently Republicans have performed. In announcing that the floor vote on Kavanaugh’s nomination will be delayed, the Senate Judiciary Committee, under Republican control, issued a press release Friday afternoon, which states (my italics): “The supplemental FBI background investigation would be limited to current credible allegations against the nominee.” But there are no credible allegations against Kavanaugh; there are incredible allegations that stand uncorroborated and convincingly denied.

Unbelievably, Republicans put this statement out right before President Trump agreed to the (purported) one-week delay for the investigation. Thus, the media can now accurately report that the president was convinced to direct an additional FBI probe after Senate Republicans expressly conceded that the sexual-assault allegations against Judge Kavanaugh are credible.

And why are they “credible”? Because Christine Blasey Ford, Kavanaugh’s principal accuser, was widely deemed credible in her testimony at Thursday’s hearing — even though her story has no support from independent evidence, is rejected by the witnesses she named, and is incoherent because she cannot recall and relate rudimentary details.

How did such an account get labeled “credible”? Well, to question Dr. Ford at the hearing, Judiciary Committee Republicans retained Arizona prosecutor Rachel Mitchell. In principle, this was not a bad plan, but somebody forgot to tell Ms. Mitchell that this was a high-stakes hearing in need of searching cross-examination, not the rambling, information-gathering questioning typical of a deposition.

Maybe Republicans instructed Mitchell to refrain from asking Ford hard questions; or maybe, her experience notwithstanding, Mitchell took it on herself to conduct a gentle, confrontation-free examination. Either way, in the one and only chance they will ever have to question Ford, Republicans failed to highlight the deep flaws in her account.

Mitchell invited Ford to wax scientific about how “the etiology of PTSD is multi-factorial,” and to school Mitchell on the topography of Montgomery County. But if you were listening for basic questions about the alleged sexual assault, you listened in vain. This isn’t hard. A lawyer could have been completely respectful of Dr. Ford’s emotional distress and still have asked elementary questions:

  • Isn’t it a fact that you don’t know where or when this purported assault happened?
  • Isn’t it a fact that you can’t tell us how you got there?
  • You just know the house was several miles from your home, but it is a fact, is it not, that you can’t tell us how you got home?
  • You’ve told us that you were terrified running out of the house after the attack, but you can’t tell us who rescued you and drove you away?
  • You remember 36 years ago that you had exactly one beer at the party, you remember hearing your alleged attackers go downstairs, you remember exactly the route you took to get out of the house, yet you can’t tell us what happened after you left the house?
  • So, you’re sure the party happened, but you can’t say when it happened, you can’t say where it happened, you don’t know how you got there, you don’t know how you got home, and every person you’ve identified as a witness says that they have no memory of the party and that they never saw Brett Kavanaugh act the way you’ve described, isn’t that right?

It would not have taken very long. Certainly Democrats demonstrated to Ms. Mitchell that five-minute rounds can be used very effectively if you have a plan. But the only plan Republicans seem to have had was not to offend anyone by asking questions that were, you know, about the subject matter of the hearing that the whole country was watching. A witness can seem awfully credible if she’s not asked about the incredible aspects of her story.

And — voila! — the Democrats have their next delay and can proclaim that Senate Republicans found the allegations so credible that President Trump had to call in the FBI to investigate.

Nice job.

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