The Problem With Agreeing to an FBI Investigation of Kavanaugh Is Assuming Democrats Are Objecting in Good Faith


Sen. Jeff Flake (R-Ariz.) at a Judiciary Committee executive session before taking a vote to move Judge Brett Kavanaugh’s nomination to the Supreme Court out of committee, on Capitol Hill in Washington, Sept. 28, 2018. Flake’s last-minute decision to force an extended FBI investigation of Kavanaugh wasn’t what most Republicans wanted, but it could end up easing the way for the nominee’s Supreme Court confirmation, columnist Carl Hulse says. (Erin Schaff/The New York Times)

Last week when retiring Arizona Senator Jeff Flake dropped a bomb on the confirmation proceedings for Supreme Court nominee Brett Kavanaugh, saying a prerequisite for his yes vote would be a short and focused FBI investigation, I suspect his motivations were pure. I think he truly believed he was doing the right thing, allowing a process which would satisfy Democrats concerned about by accusations of sexual misconduct.

Flake’s mistake was assuming that Democrats have been objecting to Kavanaugh in good faith.

They haven’t been, as Senator Flake’s more prescient colleagues have pointed out:

There is no investigation that will ever satisfy a group of people who were against Kavanaug before Kavanaugh was ever nominated. The goal, before President Trump ever named a nominee, has been to delay a new appointment to the Supreme Court until after the midterm elections.

Republicans have little room to be critical given what they did to Obama-nominee Merrick Garland, but those concerned with a just process for Kavanaugh needn’t concern themselves with partisan tit-for-tat.

Past Republican malfeasance is no justification for current Democratic malfeasance.

In a better sort of world an FBI investigation would make sense. Kavanaugh has been accused, and while those accusations have zero third-party corroboration and numerous inconsistencies, a competent official review of them isn’t necessarily a bad thing.

But we live in a fallen world. A terrible time where the ends justify the means. Democrats are not out for justice, and neither are Republicans. Each side wants the outcome which most benefits them, politically.

Yet caught up in that are real human beings – Christine Blasey Ford, for one, and Brett Kavanaugh for another – who deserve something better.

This FBI investigation will satisfy very few. Democrats are already throwing dirt on it, accusing the White House of “micromanaging” it and demanding an ever greater scope. They’re also lowering the bar for themselves. They aren’t focused on the accusations of sexual misconduct, which aren’t likely to be proved or disproved by the FBI, but now on the idea that Kavanaugh was less than forthcoming about his past relationship with alcohol.

It is a farce.

What Republicans ought to do is afford Kavanaugh of assuming his innocence until he’s proven guilt by confirming him to the Supreme Court. Then, once the politics around his confirmation has settled down and the political mob has moved on to their next victims, a thorough investigation can take place. If it turns up substantive evidence of wrong-doing by Kavanaugh he can always be impeached.