Opinion writer

During his testimony to the Senate Judiciary Committee on Thursday, Brett Kavanaugh defended his qualifications for the Supreme Court by repeatedly citing his support from the American Bar Association. Crucially, Kavanaugh noted that the ABA had vetted him for the position. Kavanaugh said this not once but twice.

Sen. Lindsey Graham (R-S.C.), Kavanaugh’s chief defender, a man who melted down in a fit of histrionic rage at the sight of Kavanaugh getting confronted with the thoroughly credible testimony of Christine Blasey Ford, also cited the ABA’s support for Kavanaugh. Graham specifically cited the ABA, which he called the “gold standard,” in making the case that Kavanaugh “lived a good life” and that “his integrity is absolutely unquestioned.”

Now the ABA has issued a new letter calling for a renewed FBI background check into the charges against Kavanaugh, insisting that the Judiciary Committee must not hold any vote on his nomination until this happens:

The American Bar Association urges the United States Senate Judiciary Committee (and, as appropriate, the full Senate) to conduct a confirmation vote on Judge Kavanaugh’s nomination only after an appropriate background check into the allegations made by Professor Ford and others is completed by the Federal Bureau of Investigation.

We make this request because of the ABA’s respect for the rule of law and due process under law. The basic principles that underscore the Senate’s constitutional duty of advice and consent on federal judicial nominees require nothing less than a careful examination of the accusations and facts by the FBI.

The ABA is not simply calling for a delay in the vote. It is stating directly and unequivocally that Kavanaugh has not been thoroughly vetted for lifetime elevation to the nation’s highest court — completely undercutting Kavanaugh’s own claim that the ABA’s support for him shows otherwise.

What’s more, the ABA is also asserting that voting to move him forward now — absent a reopened FBI background check — would represent a complete abdication of advice and consent duty on the part of individual senators, one that would flout the rule of law and due process.

That is, a complete abdication of duty by senators like Jeff Flake of Arizona.

What about Mark Judge?

Today, the Judiciary Committee is expected to vote on Kavanaugh’s nomination, and all indications are that Flake is the only one of 11 Republican senators who had not previously made up his mind to support him. All the others, naturally, were always going to support him, and Thursday’s hearing at which they pretended to want to give Ford’s charges a fair hearing was all just playacting. Indeed, they couldn’t even sustain that ruse for very long, as numerous of them dissolved into anger and whiny lashing out at precisely the moments when Ford’s charges were putting Kavanaugh in a difficult position. But Flake, by all indications, does not want to be perceived in this way.

Flake just confirmed that he will vote for Kavanaugh today.

“We heard compelling testimony from Dr. Ford, as well as a persuasive response from Judge Kavanaugh,” Flake said. “I left the hearing yesterday with as much doubt as certainty.”

The ABA letter does not say this explicitly, but we all know what a full FBI investigation really means: a serious effort to interview Mark Judge, the man whom Ford claims was Kavanaugh’s accomplice to sexual assault. The GOP majority on the Senate Judiciary Committee has refused to subpoena Judge.


(Jim Bourg/Reuters)

We have since learned that Judge’s college girlfriend, Elizabeth Rasor, is also prepared to talk to the FBI and the Judiciary Committee. Rasor’s lawyer has confirmed that she is willing to testify to the fact that Judge privately confided in her about a session in which he and others took turns having sex with a drunk woman. That session apparently did not include Kavanaugh. But Michael Avenatti’s client, Julie Swetnick, has claimed that Judge and Kavanaugh did collaborate to inebriate young women for such sessions.

Maybe that last charge is entirely fanciful. What really matters here is that Kavanaugh refused again and again at the hearing to say that he wants an FBI investigation. Why?

We all know why: Kavanaugh does not want the one person Ford claims was in the room during the sexual assault — the one person who probably knows the most about Kavanaugh’s general conduct at the time, which Kavanaugh has falsified with his choirboy routine — to face serious questioning by the FBI or cross examination by Judiciary Committee Senators.

How can any Senator who actually wants to be seen taking Ford’s charges seriously vote to move Kavanaugh forward without any serious effort to question Judge? Why haven’t Senators subpoenaed him? Why won’t they hear from his college girlfriend, who volunteered her testimony?

In addition to the ABA, Alan Dershowitz, who is Trump’s favorite legal thinker, also just called for an FBI investigation, claiming that “right now there are too many unanswered questions” to bring this to a vote.” Dershowitz insisted the FBI must first interview “the accusers and other witnesses” — which includes Judge, of course — to ensure “a full and thorough examination of these serious charges.”

Flake’s public agony

Flake has been publicly agonizing over this decision, meditating on the fact that there will inevitably be “doubt” and a lack of “certainty” about what really happened.  Today, in announcing his yes vote, he reiterated that he “left the hearing with as much doubt as certainty.”

But absent these further steps, how can Flake pretend that Judiciary Committee Senators — and he himself — have done everything they could to get as close as possible to resolving that uncertainty? The fact that total resolution might ultimately remain elusive is not an excuse.

Graham’s rage routine is really about threatening undecided senators with the anger of the Trump/GOP base, to intimidate them into backing off what the ABA rightly describes as their own duty. Graham claims that not voting for Kavanaugh now is tantamount to legitimizing Democratic tactics. Flake has been chased out of the Senate by the rage of the Trump/GOP base. But in this case, Flake could have insisted on an FBI investigation now while reserving for himself the right to vote for Kavanaugh later.

Indeed, if Flake did the right thing and insisted on a further inquiry, he might be able to ultimately vote for Kavanaugh after a serious effort to resolve his own “doubt” has been made. Wouldn’t that be a better outcome?

Now that the ABA and Dershowitz have called for a delay pending a reopened FBI background check, Flake even had the “cover” to do this. Instead, he decided to capitulate to that doubt, to the rage of the base, and to the refusal of his GOP colleagues to learn the full truth.

Read more:

Brett Kavanaugh, disrobed

The Kavanaugh-Ford hearing broke the committee

Ford’s testimony was devastating. Kavanaugh’s was volcanic.

The most telling moment: Kavanaugh goes after Sen. Klobuchar