The Corner

Law & the Courts

Is It Time for the FBI?

Supreme Court nominee Judge Brett Kavanaugh at his Senate Judiciary Committee confirmation hearing, September 4, 2018. (Chris Wattie/Reuters)

Should there be an FBI investigation into the allegations against Brett Kavanaugh?

On the merits, I still think the answer is No — for reasons discussed quite a bit around here already.

But the merits are at best just one consideration among many in this mess.

Kavanaugh has two competing objectives in all of this: to protect his reputation and to get confirmed. Part of the problem is that these objectives are linked.

If he withdrew his nomination, solely to pursue the effort to clear his name, not only would that amount to a total victory for his opponents (and their tactics), no one but close friends, family, and very committed supporters would care. The cameras would go off, the phones would stop ringing. And the slander against him would have a very long cultural half-life.

If he gets on the bench without clearing his name, that would be a problem for him and the Court for a generation — never mind a problem for the GOP going into the midterms. Not only would it be bad for Republicans and conservatives to have every 5-4 decision affecting reproduction and women’s rights to be tainted by all this, it would be bad for America too. But, again, it would also be bad if the Left’s tactics were rewarded, as we editorialized.

Allahpundit has a good response to this:

Which is the “surrender option” at this point when it comes to an FBI investigation, though? If you’re confident that he did nothing wrong and he’s confirmed without the opportunity for vindication by the Democrats’ own preferred law-enforcement authority, the left will hang an asterisk on every opinion he writes for the next 30 years. If you call their bluff and the FBI finds nothing, though, the Dems look like smear merchants. Remember, it’s *very unlikely* that Kavanaugh can dig his way out of the suspicion that’s been piled on him through his own efforts at Thursday’s hearing. Ford’s allegations are so thin on specifics that there’s next to nothing by way of hard evidence he can provide to clear himself. He’ll spend hours being grilled about teenaged partying, whether he ever waved his schwanz in a Yale classmate’s face, etc, while Ford will be questioned very respectfully about her story. All she has to do is prove that she believes that it happened, not that it actually happened, and he’ll end up damaged. It may be that an FBI investigation, as silly as it seems under the circumstances, is the one thing that can lend some independent nonpartisan authority to his claims of innocence.

I agree with this. Indeed I am at a loss as to how any institution or actor, other than the FBI, can cut this Gordian knot. There was a time when many of the calls for the FBI investigation were made obviously and transparently in bad faith as part of a delay strategy. But now I’m inclined to believe the GOP should call the Democrats’ bluff. I’ve heard people such as Senators Coons and Hirono say over and over again that the Anita Hill FBI investigations only took a few days. I see no reason why investigating Ford’s claims shouldn’t take about as long. There’s no crime scene to investigate, no hair follicles to send to Quantico.

Opponents of having the FBI investigate have often said — rightly — that all the FBI can do is what the Senate is going to do: Ask the relevant parties what happened. That’s right. So have the FBI ask away — quickly. I know that lying to the Senate is a crime just like lying to the FBI, but, culturally and politically, people do think the FBI actually is the super-serious police, and since doing background checks is part of its portfolio, having the FBI do a seventh or add an addendum to the sixth background check of Brett Kavanaugh doesn’t seem crazy to me.

Lots of people reject all of this and say that the GOP should stop the circus and just vote right now. That would be a great idea if Kavanaugh had the votes. He doesn’t. And something will have to change for him to get them.

Maybe Ford won’t show up Thursday (which is almost likely from the sound of things). Maybe she won’t be credible at all and that will be the end of it. But if she passes the threshold of sounding believable enough, it seems likely that the only choice will be calling the FBI.

Jonah Goldberg — Jonah Goldberg holds the Asness Chair in Applied Liberty at the American Enterprise Institute and is a senior editor of National Review. His new book, The Suicide of The West, is on sale now.

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