by Robert Romano
Article II, Section 2 of the Constitution states that “The president shall… nominate, and by and with the advice and consent of the senate, shall appoint… judges of the supreme court…”
Those are the simple words that outline the process prescribed by the U.S. Constitution for confirming Supreme Court justices. The President nominates a justice, in the current case Judge Brett Kavanaugh, and the Senate advises and then either consents or not to the nomination.
Not the Federal Bureau of Investigation, which is not even in the Constitution.
It seems that Senate Democrats were more interested in asking Judge Kavanaugh what he thought the appropriate process for hearing the allegations of Dr. Christine Blasey Ford was than to ask him about those allegations.
To his credit, Kavanaugh did not give the committee Democrats what they wanted, which was a sound bite calling for an FBI investigation into himself.
What a preposterous line of questioning.
The FBI cannot even bring a charge of sexual assault against Kavanaugh or anyone else. As it is, Kavanaugh has already been subject to six FBI background checks throughout his career, which is really all that would happen here.
A statement by the White House noted the shortcomings of an FBI-led process: “The FBI does not make a credibility assessment of any information it receives with respect to a nominee. The FBI provides notes from interviews that are conducted in relation to the nominee’s background. Those notes contain no editorializing or opinions on candor, body language, or credibility of those interviewed and any statements made during the interview.”
In 1991 during the Clarence Thomas confirmation, then Chairman of the Judiciary Committee Joe Biden said, “The reason why we cannot rely on the FBI report, you wouldn’t like it if we did, because it is inconclusive…They say he said, she said, and they said. Period. So when people wave an FBI report before you, understand, they do not … reach conclusions. They do not make… recommendations.”
Democrats were looking for a sound bite, not an investigation. The FBI has no authority to conduct a criminal investigation against Kavanaugh on this particular allegation.
Now, Montgomery County police can investigate any and all crimes in its jurisdiction. There is no statute of limitations on sexual assault in the state of Maryland. It still could if there was probable cause. Then, a proper venue first and foremost would have been a court of law in the state of Maryland, where Kavanaugh went to high school.
As it is, Dr. Ford in her testimony still could not provide a specific date and location for the alleged crime, and eyewitnesses have submitted sworn statements contradicting her testimony. That’s not something that can be prosecuted, nor should it, let alone lead to a conviction.
According to Politico’s Burgess Everett and John Bresnahan, “Rachel Mitchell, a lawyer who was retained by the Senate GOP to question Ford, broke down her analysis of the testimony to Republicans, but did not advise them how to vote. She told them that as a prosecutor she would not charge Kavanaugh or even pursue a search warrant…”
So, we are left with the Senate Judiciary Committee, which can hear sworn testimony and receive sworn affidavits, which it has done.
And then the “ultimate fact finder,” in Kavanaugh’s words, decides. That is, the U.S. Senate, which oversees Kavanaugh’s confirmation.
The FBI can provide background checks on nominees, as is routine. It could append the record again, as it has already, and could include the sworn statements and testimony that have now been provided to the committee. It could take more statements, for sure. But it’s not likely to tell us anything we don’t already know that’s been put into the public record.
The Senate has the constitutional power to conduct its own investigations and question witnesses as a part of the advice and consent process.
The only true goal here is to delay this process and kick out this open Supreme Court seat past the 2020 election. The Senate Judiciary Committee should just go ahead and vote, and then so should the U.S. Senate.
Judge Kavanaugh, a qualified jurist who interprets the law as written — a constitutionalist — should be confirmed.
As for the Senators who want to defer their constitutional responsibility to the FBI to confirm or not confirm Judge Kavanaugh to the Supreme Court, they should just do everyone a favor and resign. It is they who are not fit to serve.
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Robert Romano is the Vice President of Public Policy at Americans for Limited Government.