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Commentary By Rafael A. Mangual

An FBI Investigation Won’t Matter for Brett Kavanaugh

Governance Civil Justice

As the Senate Judiciary Committee advanced the nomination of Judge Brett Kavanaugh to the Senate floor, it seems that Democrats and left-wing pundits may very well (thanks to Arizona Sen. Jeff Flake) get what they've been asking for: an investigation by the FBI into the accusations of sexual assault against the nominee. But recent history casts doubt on whether a finding in Kavanaugh's favor would make a difference in the minds of Democrats who decided — long before there was any mention of the allegation — that Kavanaugh was unfit to serve on the Supreme Court.

Sens. Richard Blumenthal of Connecticut and Kamala Harris of California explicitly said that they believed the accuser, Christine Blasey Ford, and the rest of the Democrats on the Senate Judiciary Committee made pretty clear that they did, too. Senate Minority Leader Chuck Schumer made clear within minutes of Kavanaugh's nomination in July that the Democrats would oppose him. So what would an FBI investigation change? An FBI finding in Kavanaugh's favor will not open Senate Democrats up to his ideas on originalism and Chevron deference. Yet, the Judiciary Committee Democrats insist that the cloud could be lifted, if only Kavanaugh joined them in calling for an FBI investigation. And they've talked Sen. Flake into believing them.

However, Senate Democrats would almost surely ignore or dismiss any exculpatory conclusions drawn by the FBI. We know this because it has happened before. When then-Supreme Court nominee Clarence Thomas sat before the same committee, accused of sexual harassment, then-Sen. Joe Biden told the world what he thought about the FBI's report of its investigation into Thomas:

The next person who refers to an FBI report as being worth anything obviously doesn't understand anything. FBI explicitly does not, in this case or any other case, reach a conclusion, period. Period. … They say, he said, she said and they said, period . . . So when people wave an FBI report before you, understand they do not — they do not, they do not — reach conclusions. They do not make, as my friend points out more accurately, they do not make recommendations.

Continue reading the entire piece here at The Philadelphia Inquirer

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Rafael A. Mangual is a fellow and deputy director for legal policy at the Manhattan Institute. Follow him on Twitter here. This piece was adapted from City Journal.

This piece originally appeared in The Philadelphia Inquirer