The Washington PostDemocracy Dies in Darkness

Opinion Why investigate the Kavanaugh confirmation process?

Rep. Jerrold Nadler (D-N.Y.), center, in Washington in March. He is joined by Democratic congressmen, left to right, Bradley Schneider (Ill.), Luis Gutiérrez, (Ill.) and Hank Johnson (Ga.). (J. Scott Applewhite/AP)
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Appearing NBC’s “Meet the Press” on Sunday, Sen. Christopher A. Coons (D-Del.) was asked whether Democrats would try to impeach Justice Brett M. Kavanaugh. He responded:

“I think that’s premature. I think, you know, frankly, we are just less than a month away from an election. Folks who feel very strongly one way or the other about the issues in front of us should get out and vote and participate. . . . There’s only ever been one justice that’s been impeached and I think talking about it at this point isn’t necessarily healing us and moving us forward. . . . The Senate’s role in our politics is not to just reflect the country, but to help heal and lead the country. And that’s the course we should be on.”

Impeachment is a remedy once wrongdoing is discovered; it’s not an exercise to be undertaken on a whim or in retribution. The real issue is whether there is anything to investigate regarding Kavanaugh’s confirmation. There are two sets of issues — whether Kavanaugh lied under oath and whether the White House or its allies corrupted the process. They overlap, but are not identical.

With regard to the process, it will behoove the next Congress to find out what instructions the FBI received and whether the White House counsel prevented the FBI from interviewing the then-nominee out of concern he might lie or might reveal incriminating facts.

In addition, it is important to determine whether Kavanaugh participated in the mistaken identity gambit and/or influenced witnesses and potential witnesses. The FBI, Ed Whelan and others who participated in the confirmation operation should be questioned. It is their conduct (and others on the confirmation team) as much as Kavanaugh’s that is of interest. Complaints from those who offered information but were not contacted by the FBI should also be examined. It is also worth a committee staff’s time to go through documents that had been withheld to determine whether there is something of concern. All of this should have been completed before Kavanaugh was seated, but it’s not moot now that he has been sworn in. Documents, for one thing, may reveal cases or categories of cases for which Kavanaugh should recuse himself. All these questions bear on the perceived legitimacy of the Supreme Court.

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slew of complaints were sent to the D.C. Circuit and then passed on to Chief Justice John G. Roberts Jr. relating to the truthfulness of Kavanaugh’s testimony under oath. Those are now irrelevant from the perspective of the judicial branch’s oversight, but Congress should obtain access to them, carefully review the specifics and then decide whether there were specific factual misrepresentations. It is no easy matter to find specific statements of facts (as opposed to evasions, non-responses and non sequiturs) and prove conclusively they were false — but it is possible. If there are grounds, the FBI should investigate whether he lied under oath.

Post contributor Randall D. Eliason walks through the perjury claims around Brett M. Kavanaugh's Senate testimony, from the blackout denials to "boofing." (Video: Gillian Brockell/The Washington Post)

The result of these inquiries may be reform of the vetting procedures the FBI uses for nominees (i.e., who has access to reports, whether they should be kept confidential, what witnesses are spoken to). The more transparent and uniform the process, the less room there is for manipulation and chicanery.

As for impropriety by Kavanaugh or others in the confirmation process, we simply don’t know what’s there. We should find out whether Kavanaugh had anything to do with the antics of Whelan, who fingered an innocent man, or did anything improper to influence the investigation. We don’t yet know if there was any wrongdoing by the White House staff or outside groups trying to drag Kavanaugh over the finish line.

The confirmation process left a substantial percentage of the country doubting that Congress learned all it could about a critical Supreme Court nominee. Only by review and oversight of the process can the public be reassured everything was on the up-and-up. If the process was corrupted in some way, or if Kavanaugh conducted himself improperly, we need to know that, as well. The question of the appropriate remedy can then be hashed out.

There is no excuse for choosing not to review a process that was by all concerned a disaster and that leaves a cloud over Kavanaugh and the high court.