Why We Need an F.B.I. Investigation

A hearing without evidence would be little more than theater.

To read on the New York Times website click here

By Nancy Gertner

Without the context that the findings of an F.B.I. investigation could provide, the Senate hearing planned for Monday pitting Brett Kavanaugh against Christine Blasey Ford, who has accused him of sexual assault, runs the risk of being seen as little more than Kabuki theater, or, more pointedly, a gesture of appeasement to the #MeToo movement. 

In other words, we gave her a hearing, now we’re ready to vote. 

With no other witnesses or evidence, we’ll end up with a high-status, high-profile male judge squaring off against an unknown female research psychologist from Northern California. This “he said, she said” standoff is unlikely to change any minds and might merely reinforce the preconceptions of the senators who will vote on Judge Kavanaugh’s nomination to the United States Supreme Court. And we know how that is likely to turn out. 

This is why we need context. To suggest that the F.B.I. doesn’t do these sorts of investigations, as President Trump did, is simply false. The F.B.I. is responsible for doing background investigations of judicial candidates. I know; I went through one after President Bill Clinton nominated me for a federal judgeship in Massachusetts. 

The investigation begins with an application that could not be more intrusive. You’re asked to list the name of everyone you ever lived with, every address you ever inhabited, every detail of your finances. Did you ever experiment with illegal drugs and, if so which and when? If you had, your nomination might be nixed, depending on the drug. It didn’t matter if you had “experimented” in college and were now in your 50s. It didn’t matter if you had led an otherwise exemplary life in the intervening 30 years.

To put the F.B.I. back to work on Judge Kavanaugh, all the president has to do is ask. There is precedent for such a request. In 1991, when Anita Hill accused Clarence Thomas of sexual harassment after his nomination to the Supreme Court, President George H.W. Bush ordered an F.B.I. investigation that was completed before the hearings began. At the time, Sen. Orrin Hatch, a Utah Republican who was a member of the Judiciary Committee then and now, called it “the very right thing to do, it was the appropriate thing to do,” and, he added, “it was a good investigation.”

This time, the Republicans on the committee, including Sen. Hatch, apparently think another look by the F.B.I. is unnecessary. The chairman of the committee, Senator Charles E. Grassley, an Iowa Republican, said in a statement that: “Dr. Ford’s testimony would reflect her personal knowledge and memory of events. Nothing the F.B.I. or any other investigator does would have any bearing on what Dr. Ford tells the committee, so there is no reason for any further delay.”

But that’s simply not the case. Yes, the F.B.I. did look into Judge Kavanaugh’s background before this accusation was made, though we don’t know whether behavior of this sort was explored. But now, this new information bears examining by the agency, just as Ms. Hill’s complaints of sexual harassment did.

Witnesses in a court proceeding rarely just “appear” without exchanging documents in discovery, without depositions or private investigations. The only setting that comes to mind in which this is not the rule is Judge Judy’s TV “courtroom.” Indeed, an F.B.I. investigation could be especially important for Judge Kavanaugh’s supporters on the committee. They are obliged to challenge Dr. Blasey’s credibility. To do so without facts, with only the usual tropes about what women do or don’t do, comes with extraordinary political risks.

What would such an investigation entail? The F.B.I. could investigate the facts surrounding the accusation itself. And there are facts. Was there a party? Where? Who was there? What do the attendees recall about that night? Did anyone see or hear anything that bears on the accusation? Did Dr. Blasey tell anyone what happened in the hours or days afterward? Did Judge Kavanaugh? The F.B.I.’s goal would be to corroborate what can be corroborated and refute what can be refuted.

What evidence is there, if any, of Dr. Blasey’s motives in bringing these accusations? For her, coming forward with this accusation is itself extraordinary, exposing her to the opprobrium of Judge Kavanaugh’s supporters. Is her story plausible? In the abstract, the claim is certainly credible — a boozy party, a young woman in the wrong place at the wrong time bumps into two drunk young men as she makes her way to the bathroom. The other man in the room, Mark Judge, a friend of Judge Kavanaugh’s at the time, has said doesn’t recall the night, though through his writing, he has lent credence to the sort of atmospherics that surround the accusation. His memoir, “Wasted: Tales of a Gen X Drunk,” recalls his blackout drinking as a teenage alcoholic in those years. 

What about the timing of Professor Blasey’s accusations? Was this a recent contrivance? Is she is now misremembering? The #MeToo movement has made clear why some women did not come forward about sexual assault. Women’s accusations were dismissed; the culture legitimized a “boys will be boys” atmosphere. There seemed to be nowhere to turn, whether it was the police or school officials.

Was it unreasonable for Dr. Blasey to remain silent during the several years that Mr. Kavanaugh’s 2003 nomination to the United States Court of Appeals for the District of Columbia Circuit was stalled in Congress? How much did she know about the progress of his career? The fact that she related her accusation to her husband and her therapist in 2012, long before Judge Kavanaugh was in the news as a Supreme Court nominee, counts for her credibility, but the Senate needs to know, in detail, what she said to them.

Judge Kavanaugh has denied the accusation, vehemently. And it is significant that no other accusers have stepped forward. Many of the #MeToo accusations have involved “he said, she said, she said, she said.” In this case, dozens of women apparently have vouched for his character. The F.B.I. should interview them. For instance, they might ask whether he ever talked about his sexual exploits to peers at the time? What else can the F.B.I. find out about the judge that bears on his credibility? Democrats have claimed he misrepresented his work while he was in the George W. Bush White House in his testimony before the Judiciary Committee. Or, significantly, what other information did earlier background checks turn up about the judge that the F.B.I. did not pursue? 

An appointment to the Supreme Court is not an entitlement. The background investigation I underwent for a District Court judgeship was probing. Shouldn’t the inquiry for a potential Supreme Court justice be more so? After all, this a position of life tenure that demands moral leadership as the court shapes American law for what is likely to be decades to come. 

It is in everyone’s interest that this nomination not proceed under a cloud.