Washington is in an uproar, understandably, over the FBI’s “supplemental” background investigation of President Trump’s nominee for the Supreme Court, Judge Brett M. Kavanaugh.
Republicans and Democrats are at each other’s throats about the scope and duration of this hastily organized second look at Kavanaugh’s personal history in light of research psychologist Christine Blasey Ford’s sexual assault accusations: Red Americans warn against a fishing expedition while Blue Americans cry coverup.
There needs to be more discussion about why we are relying on the FBI to do this vital job in the first place. To make the whole confirmation process more streamlined and transparent, the Senate must stop depending on borrowed executive-branch personnel, supplied at the president’s discretion, and develop its own organization to conduct vetting of judicial nominees — for all levels of the federal courts — pursuant to its independent constitutional power of advice and consent.
The model would be the various nonpartisan institutions that lawmakers already rely on to provide them with objective analysis and advice on contested subjects, such as the Congressional Budget Office for economic and fiscal matters, the Government Accountability Office for audits of government programs and the Congressional Research Service, a think tank at the Library of Congress with experts on practically every policy question under the sun.
The CBO, GAO and CRS have sterling reputations for professionalism and discretion. They employ permanent staff under the ultimate supervision of leaders appointed on a bipartisan basis. The comptroller general, who runs the GAO, serves for a 15-year term, an additional guarantee of independence and impartiality.
It might be difficult to replicate those attributes in a new organization created from scratch amid the current partisan maelstrom.
No problem: The Senate could also borrow personnel from the aforementioned existing bodies for the necessary assistance. Assign the CRS’s American Law Division to draft a balanced assessment of each nominee’s legal record, including judicial opinions (in lieu of the American Bar Association’s input). Send out the flatfoots from the GAO’s special investigations unit — the folks who test airport security undercover and the like — to conduct a background check. Or hire and train new personnel drawn from the retired ranks of the FBI to do the work.
You get the idea. Whatever specific legal and institutional arrangement the Senate chooses, the main point would be to end the separation-of-powers problem that plagues the Kavanaugh investigation: Namely, its scope and duration are at least in part subject to the wishes of the president, who alone can authorize the FBI to aid the Senate and who has a pretty strong stake in the outcome, to put it mildly.
Another potential advantage of this proposal is that it would provide the Senate Judiciary Committee with a common body of information not developed by the committee’s staff, a partisan, leak-prone and nontransparent bunch even when the political climate is relatively tranquil, let alone at times such as these.
Here’s how it might work.
The executive branch would still conduct its own background check on the president’s nominee, using the FBI, and transmit the results to the Senate along with the nomination. From that moment on, a 60-day clock would start during which the Senate’s own team would do its own background check. Any and all additional information, anonymous tips, etc., that anyone deemed of interest to the committee would have to be communicated to these professionals for their consideration. A strict “exclusionary rule” would bar evidence not submitted during the 60-day window through the appropriate channel. Use it or lose it.
Some might object that this would set a precedent for similar in-house background checks for all 1,200-plus presidential appointments requiring Senate confirmation, making for a potential logistical nightmare.
Perhaps, but surely a principled distinction can be drawn between executive-branch appointments that usually end with the term of the president who made them and lifetime positions in the third branch of government.
Procedural tweaks are obviously no substitute for the broader restoration of bipartisan cooperation that the Senate and, indeed, the entire political system desperately need.
This proposal, however, might be the rare process fix that actually catalyzes substantive change. If the past two weeks have taught us anything, it is that the quality of the senators’ deliberations varies inversely with the degree of influence exercised by the White House and the bureaucratic snake pit known as the Judiciary Committee staff.
The appalling fight over Kavanaugh’s nomination to the Supreme Court may not be over yet, but it is not too soon to start thinking about preventing the next one.