Kavanaugh Delay Was A Bad Idea: Republicans Gave Democrats What They Wanted

The Democrats weren’t voting for Kavanaugh from day one, it is all a delay game until after the midterms.

You have opponents whose first and only objective is delay. From the start of the confirmation proceedings on Judge Brett Kavanaugh’s nomination to the Supreme Court, those opponents, Senate Democrats, have thus pushed for delay. At every turn. Of course they never come out and say that’s what they’re doing — they never come out and say, “We’ve abused the confirmation process and dropped a bomb at the eleventh hour, an uncorroborated, 36-year-old allegation of sexual assault, because we’re trying to delay the vote until after the midterms.” But delay is what they want.

It doesn’t matter what sheep’s clothing the wolf comes in; the wolf is always delay. When they say, “We’re protecting survivors,” they mean, “We want delay.” When they posture that “women must be believed,” their aim is more delay. When they say, “The FBI must investigate to remove any cloud over the nominee,” the translation is: “Give us a delay so we can come up with new reasons for delay.”

Get it?

Dems say, “potato,” they mean “delay”;
Dems say “tomato,” they mean delay;
Tomato, delay, potato, delay;
Let’s call the whole thing off.

So, finally, we get to a committee vote over two weeks after it should have happened; after reopening a hearing that involved 31 hours of testimony from the nominee; after 65 meetings with senators and followed by over 1,200 answers to post-hearing questions, more than the combined number of post-hearing questions in the history of Supreme Court nominations. We finally get Kavanaugh’s nomination voted out of committee. And then, as a final floor vote is about to be scheduled and debated, Republicans — taking their lead from the ineffable Jeff Flake — agree to accede to one more Democratic request (really, just one more, cross-our-hearts . . .). And what would that be?

What else? Another week of delay.

The rationale for this delay is priceless: We need an FBI investigation. It is understandable that the public does not realize how specious this demand is. But who would have thought Senate Republicans were in need of a civics lesson?

Let’s try to give them a brisk one.

The Constitution assigns the advice-and-consent function to the legislative branch. The FBI is a component of the executive branch. The constitutional powers of the legislature are not contingent on the cooperation of the executive. Moreover, the FBI did not exist until it was created by statute at the start of the 20th century, meaning the Senate was quite capably vetting judicial nominations for over a century before there was an FBI.

The Senate Judiciary Committee, which is charged with assessing judicial nominees, has one of the largest professional staffs of any committee on Capitol Hill. The staff includes many former federal prosecutors and investigators. The committee never needs to wait for the FBI; it can conduct its own, very thorough investigation of any judicial nominee.

In connection with appointments to the judiciary and executive-branch offices, the FBI assists the Senate by conducting background investigations of nominees. These investigations are not like criminal investigations, in which the FBI attempts to build a prosecution by developing proof beyond a reasonable doubt of the essential elements of federal penal offenses. The investigations are not like counterintelligence investigations, in which the FBI gathers intelligence about threats to American interests posed by foreign powers. In a background investigation, the FBI simply checks its indicies (such as its databank of rap sheets) and conducts interviews with colleagues, associates, neighbors, and other acquaintances of the nominee. The point is not to conduct criminal investigations of any allegations that develop — particularly not of state-law violations that may be time-barred for prosecution and that the FBI does not have jurisdiction to investigate anyway. The point is to flag issues for the Senate so that it may make a discriminating appraisal of the nominee’s professional competence and character.

In conducting a background check, the FBI does not draw a conclusion about a nominee’s suitability. If alleged misconduct is not the subject of a conviction or acquittal, the FBI does not make an assessment of guilt or innocence. To do these things would be to usurp the constitutional role of the Senate — it is the Senate, not the FBI, that decides whether a nominee is fit for the responsibilities of the office to which he is nominated.

Keep reading…