1. The FBI last night wrapped up its background investigation of Supreme Court nominee Brett Kavanaugh. The bureau remitted its report to the White House early today. From there, it went to the Senate. Each party is taking turns reading it.
2. Chuck Grassley, chair of the Senate Judiciary Committee, was the first to make a statement. No surprise, he said there’s nothing here we don’t already know. The implication was that Mitch McConnell’s plan to hold a vote tomorrow is a go.
3. The Democrats, of course, are going to demur. They are already suggesting that previous background checks on Kavanaugh contain troubling findings. What those are, I don’t know, because Grassley would have to make them public.
4. The investigation is a rush-job that can’t, and was not intended to, please everyone. The president placed major constraints on investigators. They didn’t interview Christine Blasey Ford, for instance.
5. The probe was designed to put a veneer of respectability to the confirmation process so the Republicans look like they did due diligence. Fact is, the people investigating Kavanaugh are kinda sorta his people.
6. Christopher Wray, the FBI director, is a fellow member of the Federalist Society. Rod Rosenstein, second in command at the Justice Department, is a Ken Starr alum, as Kavanaugh is. My point is there’s a lot of incentive to overlook this and sidestep that.
7. Call it a sham if you wish. But don’t call it hopeless.
8. I’m getting the impression that liberals are throwing up their hands, bewailing unfairness, and lamenting the loss of the court. I get that. Go head. Feel those feelings. Let them burn. But don’t let them consume you. There is a way forward.
9. First, Kavanaugh’s confirmation might not happen. The real deciders are not McConnell and Grassley. They are Jeff Flake, Susan Collins and Lisa Murkowski. (Yes, there are red-state Democrats to consider, but they will likely follow suit.)
10. All three are under pressure from both sides. They are feeling heat from two major perspectives, from liberals decrying allegations of sexual assault and conservatives (and liberals) saying that confirming him will compromise the integrity of the US Supreme Court.
11. Listen to what they say. Every word counts If they say one slightly negative thing about the investigation, expect McConnell to ask for more. If they say anything positive, that might signal that they’re going to vote yes on Kavanaugh. Like this:
12. But even if they do confirm Kavanaugh, that’s not the end. Remember: A justice can’t attack Democratic conspirators for sabotaging his reputation and career while maintaining an image of jurisprudential neutrality. There’s no going back after that partisan rampage.
13. There is in fact a growing consensus that he’s not only unfit. He’s a liability for a court whose legitimacy has been increasingly in doubt since 2010. This means the Democrats are on solid ground for any attempt to reform the court.
14. The question isn’t whether they should. The question is how.
15. This week’s investigation is how. Or least the beginning of how. The Democrats have an incentive right now to make as much noise as possible about a sham investigation so that they can return to it after they win back power (at the very least by taking the House).
16. Jerry Nadler, a New York Democrat, is likely to become the next chairman of the House Judiciary Committee. On Sunday, he told ABC's "This Week" that: "If [Brett Kavanaugh] is on the Supreme Court and the Senate hasn't investigated, then the House will have to.
17. Nadler: "We would have to investigate any credible allegations, certainly of perjury and other things that haven't been properly looked into before."
18. Sheldon Whitehouse has been making similar suggestions. He told CNN last month: "As soon as Democrats get gavels, we're going to want to get to the bottom of this."
19. This is the way forward.
It’s a long game with the goal of taking control of the government in 2020 to pass legislation that would reform the court: with terms limits or whatever.
It’s a long game with the goal of taking control of the government in 2020 to pass legislation that would reform the court: with terms limits or whatever.
20. It’s not without risk. In reopening an investigation into a sitting justice, the Democrats risk backlash. Worse, they would hasten the erosion of trust.
21. But as long as they can persuade the voting public that they are trying to save the court, and as long as their investigation shows evidence of actual wrongdoing, they should be OK.
22. All of this may sound cynical. I think it’s the reality the Democrats must face.
So far, they are. It’s up to you to make sure they continue.
So far, they are. It’s up to you to make sure they continue.
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