This is the cost when institutions have lost public trust.
The U.S. Senate is supposed to be a deliberative body, protected by extended terms from contracting the political fevers of the day. This role assumes a certain level of competence, collegiality and goodwill among its members.
None of which has been displayed by the lead Democrat on the Senate Judiciary Committee, Dianne Feinstein (Calif.). She knew about Christine Blasey Ford’s charges against Brett M. Kavanaugh for nearly two months before they started leaking to the press. This method of revelation — following the end of the Kavanaugh hearings — blindsided Feinstein’s colleagues, denied the nominee a proper chance to confront the accusation and launched an important public issue under a partisan cloud.
So Feinstein is guilty of governing malpractice and has encouraged suspicion and contempt, especially among conservatives, for the institution she represents.
How about the Judiciary Committee more broadly? This is the place where serious-minded investigations of judicial qualifications (and disqualifications) are supposed to take place. The committee has subpoena power and a staff of investigators for a reason. It should be the forum where matters such as the charges against Supreme Court nominee Kavanaugh are considered. And the offer by Chairman Charles E. Grassley (R-Iowa) to hear committee testimony by Ford, in public or private, was not unreasonable.
But Democrats view the Republican-controlled Judiciary Committee as highly politicized — and for an understandable reason. The most recent Supreme Court nominee chosen by a Democrat, Merrick Garland, was defeated and mistreated by delaying his vote beyond President Barack Obama’s term in office. There was no credible explanation for doing this — except that the ideological stakes were high and Republicans had the ability to impose their will. It was a raw and effective exercise of power, but it had the cost of leaving a bad partisan taste in senatorial mouths.
Over the past few years, Republicans have demonstrated an undeniable ruthlessness in the Supreme Court nomination process, encouraging progressive suspicion and contempt.
So how about the FBI? It, at least, should be a respected, trusted arbiter in American life. Why not take the job of investigation away from elected representatives and give it to career professionals?
But who could have possibly predicted the bureau’s reputational roller coaster over the past few years? First, a clownish intervention in the last days of a presidential election that might have helped elect Donald Trump. Then revelations about politicized agents within the FBI who hated Trump. Then almost daily attacks on the bureau by the president of the United States, who calls his trashing of the FBI’s credibility “one of my crowning achievements.”
The Democratic call for FBI involvement was badly mishandled. By withdrawing Ford’s initial agreement to testify before the Judiciary Committee and insisting on a preliminary investigation by the FBI, Ford’s attorneys made their strategy seem like a time-wasting partisan maneuver. And we already know how Senate Democrats would overwhelmingly respond to an eventual FBI report. If the FBI were to find strong evidence implicating Kavanaugh in a crime, Democrats would oppose him. If there were a muddled mix of accusations and memories, Democrats would oppose him. If Kavanaugh were completely vindicated, Democrats would oppose him.
Americans can be forgiven for thinking that everything involved in Supreme Court nominations — all the institutions, traditions, principles, procedures, solemn oaths and columned buildings — are merely a cover, a disguise for the will to power. Where there is no authority, all that remains is a contest of power.
Out of all this, two things strike me as clear.
First, as it stands, the facts are in Kavanaugh’s favor. The charge against him is vague, uncorroborated and completely inconsistent with virtually all other accounts of his character.
Second, an accusation of attempted rape can’t be allowed to hang in the air without a more serious investigation. In matters of such cruelty and lasting damage, there is no exemption for youth and inexperience. I would no more want a Supreme Court justice who had attempted rape than I would want a president who committed sexual assault. That is not too high a standard.
I am on record saying that Republicans should go the extra mile to examine the Ford accusation. But not an extra marathon. Of all our institutions, the FBI retains some shred of moral standing. It should be instructed by the president to conduct an investigation, in a limited amount of time, with a narrow remit: to see whether there are any other witnesses or contemporaneous evidence that would make Ford’s claim seem likely. If not, Kavanaugh should be quickly confirmed.