On Monday, it seemed that the Senate had found a satisfactory way to deal with a California psychologist’s shocking allegation that Supreme Court nominee Brett Kavanaugh had sexually assaulted her when they were high school students, a claim the nominee has categorically denied. Both Christine Blasey Ford and Kavanaugh would testify Monday at reopened hearings of the Senate Judiciary Committee.
But now the prospect of testimony by Ford is in doubt because of a request by her attorneys that her testimony be postponed until after a “full investigation by law enforcement officials.” An FBI investigation, they wrote in a letter to committee Chairman Charles E. Grassley (R-Iowa), “will ensure that the crucial facts and witnesses in this matter are assessed in a nonpartisan manner, and that the committee is fully informed before conducting any hearing or making any decisions.”
There’s no guarantee that an investigation would bring any more clarity, or that its findings would make a difference in how the committee questions Ford and Kavanaugh. But given the stakes here, it could only help to have the FBI try to shed more light on the situation before the hearing is held.
Yet Grassley is standing firm. In a letter to the lawyers released on Wednesday, he repeated his invitation for Ford to testify on Monday, advising that if she decided to appear, her prepared remarks must be submitted by Friday at 10 a.m. As for the FBI, he insisted: “It is not the FBI’s role to investigate a matter such as this.”
This is an obstructionist response that does no favors for Kavanaugh. As Grassley acknowledges elsewhere in his letter, it’s common practice for the FBI to conduct background investigations for Supreme Court nominees. While these aren’t criminal investigations, they do seek to acquire information about a nominee’s character.
Moreover, there is a precedent for expanding such investigations when new allegations surface. In 1991, after University of Oklahoma College of Law professor Anita Hill accused Supreme Court nominee Clarence Thomas of sexually harassing behavior when they worked together at two federal agencies, President George H.W. Bush ordered the FBI to look into her allegations. The interviews the bureau conducted took only three days to complete.
We see no reason why testimony by Kavanaugh, Ford and other relevant witnesses couldn’t be postponed until after a similarly expedited investigation. And while Grassley is correct in noting that the Senate can’t “commandeer an Executive Branch agency into conducting our due diligence,” he and other Republicans should urge President Trump to direct the FBI to expand its background check of Kavanaugh to include Ford’s accusations. (The president appeared reluctant to give such direction Wednesday, telling reporters: “Well, it would seem that the FBI really doesn’t do that.”)
No matter what happens, we can expect plenty of partisanship and disingenousness at the hearing — even if the FBI can give senators a better factual basis to work with. Republicans are eager to speed Kavanaugh’s confirmation vote and Democrats are eager to delay it at least until the midterm elections are over. But the rest of us ought to focus on getting the information needed to understand whether there’s something in Brett Kavanaugh’s past — or in his recent statements about that past — that ought to make us think twice about him serving on the Supreme Court.