It’s almost like they would rather delay and disrupt the process for political reasons.
J udge Brett Kavanaugh’s Supreme Court hearing opened as a two-ring circus: On the dais Senate Democrats repeatedly interrupted and attempted to derail the proceedings; in the audience, a succession of protests did much the same. Senator Ben Sasse drew notice, and nods, when he declared in his opening statement that “confirmation hearings haven’t worked for 31 years in America.”
Confirmation hearings, however, constitute a small part of the badly battered confirmation process. Much of the Senate’s “advice and consent” function occurs quietly, behind closed doors, and away from the cameras. As a former chief nominations counsel to the Senate Judiciary Committee, I had the privilege to play a role in this process and to see the best and the worst of our judicial confirmation system. Among the most effective part of the process is the Senate’s review of a nominee’s character and fitness—the so-called “background investigation process.”
When Senator Dianne Feinstein received very serious allegations against Judge Kavanaugh, she could have—and should have—handled those concerns through the committee’s normal protocols. This process, which applies not just to Supreme Court nominees but to hundreds of judicial and Justice Department appointments, is specifically designed to protect the interests of both accusers and nominees. The process is both confidential and bipartisan. Its goal is to pursue the truth, not political advantage. That Senator Feinstein inexplicably chose not to handle the serious allegation Dr. Christine Blasey Ford made against Judge Kavanaugh according to these procedures has had terrible consequences for all the individuals involved and has done lasting damage to the Senate and the Supreme Court as institutions.
The political debate around the Kavanaugh confirmation has generated a great deal of confusion about the respective roles of the Senate and the FBI in investigating the background of judicial nominees. Here’s how it really works. For every judicial nominee and every nominee for a politically appointed position in the Justice Department, the FBI conducts a “background investigation.” The FBI does not evaluate the nominee’s fitness for service or make a recommendation on his or her suitability for confirmation. It gathers non-public facts, conducts interviews, and compiles a file on the nominee. That file is transmitted to the White House and later the Senate, after a nomination is officially made.
In the Senate, the FBI file is kept locked in a safe. It can be accessed only by a handful of staffers, all of whom have top-secret security clearances and all of whom agree to treat the files as though they contained state secrets. On top of that, witnesses who submit information to the FBI have the option of doing so completely anonymously, so even the cleared Senate staffers do not know who furnished the information.
Although the vast majority of nominees have exemplary background files, evidence of potential concern arises with some regularity. When the FBI interviews dozens of former associates and neighbors covering a nominee’s entire lifetime, it is not uncommon that one of those associates has something unflattering to say. Sometimes, the unflattering information crosses the line and becomes potential evidence that, if true, would disqualify a nominee from a lifetime appointment to the bench. Examples of potentially disqualifying evidence include sexual harassment, physical and sexual violence, racial prejudice, substance abuse, and pervasive dishonesty.
If either the Republican or the Democrat staffer reviewing an FBI file find anything of concern, the committee conducts additional investigation. Sometimes, especially if it finds gaps in the file, it might ask the FBI to conduct additional interviews. More often, the committee’s investigators will conduct interviews themselves. (Lying to the committee investigators, like lying to the FBI or lying under oath, is a crime punishable by prison time.) Once the staff has completed its work, it reports the results to senators who may decide to conduct interviews themselves. Ultimately, on the basis of this investigation, the senators decide whether or not a nomination should move forward.
In my time on the committee, this process worked very well. We took any evidence of character and fitness issues very seriously. We investigated any such evidence to the best of our ability. We respected confidentiality. Nothing ever leaked. I had total trust that my Democrat counterpart would never weaponize allegations against a nominee they otherwise opposed and I hope they trusted that I would never bury allegations against a nomination I otherwise supported. The senators took this responsibility, and our findings, seriously. On occasion, nominations did not move forward as a result of our work.
Today Senate Democrats say that the allegations against Judge Kavanaugh require an FBI “investigation,” even though, had they followed standard procedure, the FBI likely would have conducted interviews two months ago. Senate Democrats claim we need the FBI to get to the bottom of these allegations, even though this is not the role of the FBI. The FBI does not assess the character and fitness of nominees, the Senate does. Senate Democrats fret about the possible damage done to Dr. Ford’s reputation in a public, political process (and rightly express concerns about the threats that those in public controversies inevitably receive), even though they had at their disposal a confidential bipartisan process to avoid all of this.
It is a deep shame that Senate Democrats chose to treat these allegations as another tool in their attempts to delay and disrupt Kavanaugh’s confirmation, another ring in the circus of their creation. It didn’t have to be this way.
