President Donald Trump's Supreme Court nominee, Brett Kavanaugh, gestures over his notes as he testifies on the third day of his Senate Judiciary Committee...
Jacquelyn Martin

The problem with the Republican line on FBI and Kavanaugh

Earlier this week, Republicans on the Senate Judiciary Committee agreed to re-open the confirmation process for Judge Brett Kavanaugh, delaying a vote that had been scheduled for tomorrow. Instead, the panel agreed to hear testimony on Monday from the nominee and the woman who accused him of sexual assault when they were teenagers.

As of last night, that plan is very much in doubt. The New York Times  reported:

The woman who has accused President Trump’s Supreme Court nominee of sexual assault all but ruled out appearing at an extraordinary Senate hearing scheduled for next week to hear her allegations, insisting on Tuesday that the F.B.I. investigate first.

Speaking through lawyers, Christine Blasey Ford said she would cooperate with the Senate Judiciary Committee and left open the possibility of testifying later about her allegations against Judge Brett M. Kavanaugh. But echoing Senate Democrats, she said an investigation should be “the first step” before she is put “on national television to relive this traumatic and harrowing incident.”

The idea, as NBC News reported, is for the FBI to conduct a background investigation of the incident – before any hearing – in order to give members a basis for their questioning and possibly a corroboration of her account.

Republicans are clearly not on board with this course of action. Donald Trump told reporters yesterday, “I don’t think the FBI really should be involved because they don’t want to be involved…. As you know, they say this is not really their thing.”

Sen. Orrin Hatch (R-Utah), who said this week Kavanaugh should be confirmed even if the allegations are true, added, “The FBI does not do investigations like this.”

Perhaps Republicans are confused about the nature of the discussion. No one’s talking about the FBI conducting a criminal investigation of an attempted rape at a high school party in the 1980s. Rather, the issue now is whether the FBI can examine the allegations as part of a standard background check – which the bureau does for all Supreme Court nominees.

In 1991, for example, during Clarence Thomas’ confirmation hearings, the then-nominee told the Senate Judiciary Committee, “The first I learned of the allegations by Professor Anita Hill was on September 25, 1991 when the FBI came to my home to investigate her allegations.”

The point wasn’t that the FBI launched a federal probe of Anita Hill’s sexual-harassment claims; the point was that the FBI conducted a background investigation of a pending Supreme Court nominee.

If it happened in 1991, why can’t it happen again in 2018?

As part of a thorough process, the president could, in theory, instruct the FBI to examine the claims and share its findings with the senators on the Judiciary Committee. The background investigation could, in theory, provide the committee with necessary information that members could use as the basis for an informed hearing.

And why don’t Republicans want this? One likely reason is that it would interfere with their plans to rush Kavanaugh onto the high court. But the other possible explanation is that it would move the debate in a way that could hurt Trump’s nominee.

If the dispute comes down to two competing claims – one version of events from Christine Blasey Ford, the other from Brett Kavanaugh – the judge’s supporters can throw up their arms, call it a he-said/she-said fight, and conclude that it’s impossible to say with certainty who’s telling the truth. If, however, there’s FBI scrutiny of the claims, and the Judiciary Committee holds a more thorough hearing with additional witnesses, senators may find it vastly more difficult to shrug off the allegations.

FBI, Senate Republicans and Supreme Court

The problem with the Republican line on FBI and Kavanaugh