Saturday, September 29, 2018

Republicans Should Not Have Delayed the Kavanaugh Vote

By Andrew C. McCarthy
September 29, 2018
Image result for brett kavanaugh flake
You have opponents whose first and only objective is delay. From the start of the confirmation proceedings on Judge Brett Kavanaugh’s nomination to the Supreme Court, those opponents, Senate Democrats, have thus pushed for delay. At every turn. Of course they never come out and say that’s what they’re doing — they never come out and say, “We’ve abused the confirmation process and dropped a bomb at the eleventh hour, an uncorroborated, 36-year-old allegation of sexual assault, because we’re trying to delay the vote until after the midterms.” But delay is what they want.
It doesn’t matter what sheep’s clothing the wolf comes in; the wolf is always delay. When they say, “We’re protecting survivors,” they mean, “We want delay.” When they posture that “women must be believed,” their aim is more delay. When they say, “The FBI must investigate to remove any cloud over the nominee,” the translation is: “Give us a delay so we can come up with new reasons for delay.”
Get it?
Dems say, “potato,” they mean “delay”;
Dems say “tomato,” they mean delay;
Tomato, delay, potato, delay;
Let’s call the whole thing off.
So, finally, we get to a committee vote over two weeks after it should have happened; after reopening a hearing that involved 31 hours of testimony from the nominee; after 65 meetings with senators and followed by over 1,200 answers to post-hearing questions, more than the combined number of post-hearing questions in the history of Supreme Court nominations. We finally get Kavanaugh’s nomination voted out of committee. And then, as a final floor vote is about to be scheduled and debated, Republicans — taking their lead from the ineffable Jeff Flake — agree to accede to one more Democratic request (really, just one more, cross-our-hearts . . .). And what would that be?
What else? Another week of delay.
The rationale for this delay is priceless: We need an FBI investigation. It is understandable that the public does not realize how specious this demand is. But who would have thought Senate Republicans were in need of a civics lesson?
Let’s try to give them a brisk one.
The Constitution assigns the advice-and-consent function to the legislative branch. The FBI is a component of the executive branch. The constitutional powers of the legislature are not contingent on the cooperation of the executive. Moreover, the FBI did not exist until it was created by statute at the start of the 20th century, meaning the Senate was quite capably vetting judicial nominations for over a century before there was an FBI.
The Senate Judiciary Committee, which is charged with assessing judicial nominees, has one of the largest professional staffs of any committee on Capitol Hill. The staff includes many former federal prosecutors and investigators. The committee never needs to wait for the FBI; it can conduct its own, very thorough investigation of any judicial nominee.
In connection with appointments to the judiciary and executive-branch offices, the FBI assists the Senate by conducting background investigations of nominees. These investigations are not like criminal investigations, in which the FBI attempts to build a prosecution by developing proof beyond a reasonable doubt of the essential elements of federal penal offenses. The investigations are not like counterintelligence investigations, in which the FBI gathers intelligence about threats to American interests posed by foreign powers. In a background investigation, the FBI simply checks its indicies (such as its databank of rap sheets) and conducts interviews with colleagues, associates, neighbors, and other acquaintances of the nominee. The point is not to conduct criminal investigations of any allegations that develop — particularly not of state-law violations that may be time-barred for prosecution and that the FBI does not have jurisdiction to investigate anyway. The point is to flag issues for the Senate so that it may make a discriminating appraisal of the nominee’s professional competence and character.
In conducting a background check, the FBI does not draw a conclusion about a nominee’s suitability. If alleged misconduct is not the subject of a conviction or acquittal, the FBI does not make an assessment of guilt or innocence. To do these things would be to usurp the constitutional role of the Senate — it is the Senate, not the FBI, that decides whether a nominee is fit for the responsibilities of the office to which he is nominated.
Moreover, the Senate typically does not abdicate its responsibilities or judgment to executive agencies. If, for example, the FBI were to decide tomorrow that some state police agency had not committed a civil-rights violation for which it was being investigated following some racially charged incident, Democratic senators would revert to their default position of announcing that they would conduct their own investigation because the FBI is highly fallible. On most issues, Dianne Feinstein and Judiciary Committee Democrats do not suggest that the exercise of the Senate’s constitutional prerogatives must be suspended until Christopher Wray descends from Mount Sinai with the relevant tablets.
An FBI investigation of unsubstantiated allegations against Judge Kavanaugh would not resolve those allegations. If the FBI tried to resolve them but came out in Kavanaugh’s favor, Democrats would say the investigation was flawed — politicized by the Trump administration. But, in fact, the FBI would not try to resolve them; the bureau would simply interview some pertinent witnesses — if they agreed to speak to the FBI, which they would not be required to do. It would then pass the interview summaries along to the Judiciary Committee so that it could decide what probative value, if any, they had on the matter of Kavanaugh’s suitability. In other words, the FBI would only do exactly what the committee could do by itself — talk to people who might have germane information. There is nothing magical, dispositive, or conclusive about an FBI background investigation.
Judiciary Committee Democrats do not want an FBI investigation of allegations against Judge Kavanaugh because they think it will be especially illuminating or reliable. They want it because it will result in delay, giving them the breathing room necessary to come up with more reasons for delay.
So, naturally, Republicans are giving them their FBI investigation, and more delay.
Observing that the GOP majority is giving Democrats exactly what they want does not adequately convey how incompetently Republicans have performed. In announcing that the floor vote on Kavanaugh’s nomination will be delayed, the Senate Judiciary Committee, under Republican control, issued a press release Friday afternoon, which states (my italics): “The supplemental FBI background investigation would be limited to current credible allegations against the nominee.” But there are no credible allegations against Kavanaugh; there are incredible allegations that stand uncorroborated and convincingly denied.
Unbelievably, Republicans put this statement out right before President Trump agreed to the (purported) one-week delay for the investigation. Thus, the media can now accurately report that the president was convinced to direct an additional FBI probe after Senate Republicans expressly conceded that the sexual-assault allegations against Judge Kavanaugh are credible.
And why are they “credible”? Because Christine Blasey Ford, Kavanaugh’s principal accuser, was widely deemed credible in her testimony at Thursday’s hearing — even though her story has no support from independent evidence, is rejected by the witnesses she named, and is incoherent because she cannot recall and relate rudimentary details.
How did such an account get labeled “credible”? Well, to question Dr. Ford at the hearing, Judiciary Committee Republicans retained Arizona prosecutor Rachel Mitchell. In principle, this was not a bad plan, but somebody forgot to tell Ms. Mitchell that this was a high-stakes hearing in need of searching cross-examination, not the rambling, information-gathering questioning typical of a deposition.
Maybe Republicans instructed Mitchell to refrain from asking Ford hard questions; or maybe, her experience notwithstanding, Mitchell took it on herself to conduct a gentle, confrontation-free examination. Either way, in the one and only chance they will ever have to question Ford, Republicans failed to highlight the deep flaws in her account.
Mitchell invited Ford to wax scientific about how “the etiology of PTSD is multi-factorial,” and to school Mitchell on the topography of Montgomery County. But if you were listening for basic questions about the alleged sexual assault, you listened in vain. This isn’t hard. A lawyer could have been completely respectful of Dr. Ford’s emotional distress and still have asked elementary questions:
  • Isn’t it a fact that you don’t know where or when this purported assault happened?
  • Isn’t it a fact that you can’t tell us how you got there?
  • You just know the house was several miles from your home, but it is a fact, is it not, that you can’t tell us how you got home?
  • You’ve told us that you were terrified running out of the house after the attack, but you can’t tell us who rescued you and drove you away?
  • You remember 36 years ago that you had exactly one beer at the party, you remember hearing your alleged attackers go downstairs, you remember exactly the route you took to get out of the house, yet you can’t tell us what happened after you left the house?
  • So, you’re sure the party happened, but you can’t say when it happened, you can’t say where it happened, you don’t know how you got there, you don’t know how you got home, and every person you’ve identified as a witness says that they have no memory of the party and that they never saw Brett Kavanaugh act the way you’ve described, isn’t that right?
  • It would not have taken very long. Certainly Democrats demonstrated to Ms. Mitchell that five-minute rounds can be used very effectively if you have a plan. But the only plan Republicans seem to have had was not to offend anyone by asking questions that were, you know, about the subject matter of the hearing that the whole country was watching. A witness can seem awfully credible if she’s not asked about the incredible aspects of her story.
    And — voila! — the Democrats have their next delay and can proclaim that Senate Republicans found the allegations so credible that President Trump had to call in the FBI to investigate.
    Nice job.

    Kavanaugh Vote Is a Victory for Decency and Fair Play

    September 28, 2018

    Image result for brett kavanaugh

    Brett Kavanaugh has now been approved by the Senate Judiciary Committee and is headed for a confirmation vote by the full Senate, which is he expected to win. It should have been easy. But it wasn’t.

    Kavanaugh is an accomplished legal scholar and federal judge. He is widely known as a man of decency and propriety. But his—and our—political enemies have spent the past few weeks savaging the man’s reputation in perhaps the most brazen, brass-knuckled character assassination attempt in modern American political history.
    Leftists know that their ability to use the Supreme Court as an unelected, unaccountable super-legislature to force their radical agenda on the nation over the will of the people and their elected representatives is on the line. And they are fighting like hell to make keep it.
    Even now, with the vote of the full Senate imminent, a final, horrific assault on Kavanaugh should not be unexpected. Democrats have made clear that they will do and say anything to prevent his confirmation.
    They have been loud and determined, but their naked power grab has also been transparent and as such has repulsed many Americans and reminded them why they vote Republican. As Lindsey Graham reminded us, these people cannot be trusted with power.
    Delay, Delay, Delay
    Christine Blasey Ford insisted that she had to tell her story. But then she shamelessly insisted that she couldn’t—she wouldn’t!—tell her story. How could she possibly appear in front of a Senate eager to hear her story and her evidence? She couldn’t fly she said. Maybe some other time, she said. Would a chat on opening day of next year’s baseball season be convenient? No? How about Christmas 2025?
    During her testimony it came out that her fear of flying was an excuse made up out of whole cloth in order to delay her testimony. When Special Counsel Rachel Mitchell asked her why the four people she named as witnesses all denied her story, Ford turned on them, rubbishing Leland Keyser as someone with “medical problems.”
    By this time, the charade was up. Ford seemed like a sympathetic figure, but not because her testimony appeared credible. There were too many changes, too many inconsistencies, too many outright denials by all of the people she claims were present, even her friends. Perhaps everything hadn’t gone according to plan. Maybe her Democrat handlers thought they could fire off some evidence-free claims and that Republicans would fold. They were wrong. Donald Trump is not Mitt Romney.
    Under the New Standard, Nobody Is Safe
    As this farce played out people realized—women realized—that if Democrats were allowed to get away with this that no one would be safe. Not their husbands, not their sons, not their brothers, not their male friends. They would all have targets on them and there would be nothing they could do to stay safe.
    Why? Because under the Democrats’ new rules, innocence is no defense. Accusers don’t need evidence, they don’t need witnesses, in fact, it’s OK if their own witnesses deny their claims. And there certainly no statute of limitations. There doesn’t even have to be a crime—just an accusation and off to the gallows you go.
    You’re not even allowed to defend yourself because, well, because you’re a man! That would be bullying and misogynistic. Washington Post “conservative” blogger Jennifer Rubin made the point perfectly. When Kavanaugh testified, strongly denied the claims against him, and defended his character and reputation, she described it as “a moment of singular cruelty and disrespect.”
    But Senate Republicans, despite the sanctimonious cavils of ex-conservatives like Bill Kristol, finally realized they were being played. Kristol explained his own position saying that “If I had to vote today, I think I’d be a No.” He even acknowledged that “this may be unfair to Kavanaugh; and it sets a bad precedent re unverified allegations.” Mercifully, Republican Senators no longer listen to Bill Kristol. So they reorganized, focused on the real Brett Kavanaugh and pushed the vote through after hearing from both Ford and Kavanaugh.
    Kavanaugh’s testimony was a tour de force. It was strong, thoughtful, and gracious. The part in which he describes praying with his family for Dr. Ford was particularly moving. This will make no sense to the aggressively secular Left, but is no surprise to either practicing Christians or Jews.
    Now it’s on to the confirmation vote. We’re not out of the woods yet, especially with Jeff Flake giving Democrats time for more skullduggery, but we’re close. Good on Senate Republicans. When it’s over, it will be a victory two generations in the making from which the country will be reaping rewards for decades to come. Kavanaugh will join Samuel Alito, Neil Gorsuch, Clarence Thomas, and John Roberts in leading a constitutional restoration that will enrich us all.