An appalling, divisive week came to a better close with the last-minute, still-evolving plan to reopen the background investigation into Supreme Court nominee Brett M. Kavanaugh.
It’s a commentary on our tribal times that it took the 11th-hour intervention of Arizona Republican Sen. Jeff Flake to get to this obvious point. “We ought to do what we can to make sure that we do all the diligence with a nomination this important,” Flake said. This step should have been a no-brainer.
That Republican senators spent so much time at Thursday’s hearing pooh-poohing the need for any additional investigation was evidence that their desire was to muscle through a Supreme Court confirmation at any cost — not to get to the truth. That Kavanaugh repeatedly dodged requests that he ask for such an inquiry was similarly, if not more, disconcerting. Yes, every day the confirmation limps along is painful for his family, but one would think an innocent man would crave as much investigation, and therefore exoneration, as possible.
Of course we need an FBI investigation, and a week’s delay seems minimal when a lifetime seat on the Supreme Court is at stake. The FBI is skilled in taking witness statements; Kavanaugh’s assertion that it does not reach conclusions was the reddest of herrings. The FBI gathers facts, precisely what is desperately needed here.
Kavanaugh and Christine Blasey Ford should be re-interviewed in a professional, sustained way about Ford’s allegations from that night. Other potential witnesses, including Mark Judge, the other person whom Ford has said was in the room, and Leland Keyser, the female friend Ford says was at the party, should be questioned. Numerous Kavanaugh friends are mentioned in his calendars as having attended parties during that time; they should be questioned, and the FBI could help determine whether a house with the layout that Ford describes was ever the scene of such gatherings.
At the same time, for the good of all involved, the FBI should also question Deborah Ramirez, the Yale classmate who says Kavanaugh exposed himself to her during a freshman-year drinking game, and Julie Swetnick, who described seeing Kavanaugh and others “lined up outside rooms” at parties “waiting for their ‘turn’ with a girl.”
Is there corroboration for these explosive claims, or are they flimsy? Obtaining the best available answer would be the better outcome for the country.
Still, let’s not get carried away: The likelihood remains low that an investigation will conclusively resolve the conflicting accounts of Ford, who asserts with “100 percent” certainty that Kavanaugh sexually assaulted her, and Kavanaugh, who categorically denies engaging in such behavior with Ford or anyone else. Memories are hazy; the alleged events took place more than three decades ago. But it’s worth a try, because the absence of effort guarantees the persistence of doubt. Even a scintilla of additional evidence on either side of the ledger would be helpful. Meanwhile, the simple act of attempting to discern the truth at least offers the prospect of helping to calm the tribal fury, both within the Senate and in the country at large.
Meantime, perhaps the week delay will help calm some of the internal Senate fury here. Whatever the reason for the late emergence of the allegations against Kavanaugh, what matters at this point is not the timing but the truth. If the allegations against Kavanaugh are a smear, they would have been equally as scurrilous in July as they are in September. If they are serious, they need to be taken as seriously now, as the first Monday in October approaches.
Finally, and this is the hardest reality to acknowledge, the likelihood is that, in the end, senators will continue to face an agonizing choice in determining how to proceed in the face of uncertainty. While the FBI investigates, assuming its inquiry goes forward, it would be helpful to take the time to think through how senators should address this decision — that is, those few senators whose minds were not made up long before the allegations of sexual misconduct arose.
It has become common to frame the Kavanaugh conundrum in terms of two alternative models: confirmation as criminal proceeding, and confirmation as job interview. In truth, neither analogy is fully satisfying. The essential indicia of fair criminal process — presumptions of innocence and heavy burdens of proof — should not be imported wholesale into the sphere of a Senate confirmations.
At the same time, a job interview conducted on this public a stage is no ordinary interview, and failing to get this job carries with it an indelible layer of humiliation. That uncomfortable truth has to be taken into account. So does the countervailing reality that this is an interview for one of the most important jobs of all. The risk of getting it wrong is higher than the risk of choosing the wrong middle manager.
A pause to investigate, to calm down, to think things through. “We are in a better place than we were at 8 a.m.,” Sen. Amy Klobuchar (D-Minn.) said just after the deal was announced. That may not be much but, in these difficult times, it is still worth clinging to.