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Without FBI Investigation Of Kavanaugh Charges, Senate Hearing Is Meaningless

Without one, it could be a repeat of the Anita Hill/Clarence Thomas fiasco.

Although the Brett Kavanaugh hearings will reopen on Monday, with Doctor Christine Blasey Ford testifying before the Senate Judiciary Committee, the White House still refuses to ask the FBI to investigate her allegations of sexual assault and attempted rape, much to the consternation of Senate Democrats.

As has been widely reported, Senator Dianne Feinstein went to the FBI with a letter last week outlining Ford's allegations. This should mean that the FBI has a reason to investigate them, right? Wrong - in order for that to happen, the White House would have to make a request to the FBI to do so. Instead, they just added the letter to Kavanaugh's background check file for the White House. 

Trump is steadfast in his refusal to pull his nomination, and getting him to sign off on such an investigation would be unlikely. The Democrats' best bet in this regard is to go through White House Counsel Don McGahn and get him to sign off on an investigation, or persuade Judiciary Committee Chairman Chuck Grassley to ask for it. They have already written a letter to McGahn asking for authorization.

These allegations have put Republicans on the defensive for the first time in this fight. Although Judge Kavanaugh is the most unpopular Supreme Court nominee since Clarence Thomas (and before then, Robert Bork), his confirmation seemed assured given that they have just enough votes to confirm him, assuming they all vote in lockstep. Assuming they do not authorize an FBI investigation, they run the risk of de-legitimizing next Monday's hearings before they've even begun. 

Senator Richard Blumenthal spoke for his party last night when he said on The Rachel Maddow Show that “There has to be a full, fair FBI investigation before that hearing so that we know facts and we’re not just asking questions in the dark...There’s no way that I would put a crime victim on the stand without an investigation, let alone a witness before the entire American people." In audio obtained by MSNBC, Feinstein and Senator Doug Jones could be heard echoing these sentiments. 

Most importantly, an FBI investigation could make all the difference in the world when it comes to the parallels between today and the last time a charge of sexual misconduct nearly derailed a Supreme Court nominee. In 1991, Anita Hill alleged that then-judge Clarence Thomas harassed her when she worked for him in his law office, and bravely stepped forward to tell the Judiciary Committee what he had done. She received risible treatment from her all-white-and-male questioners, with Republicans like Arlen Specter demanding she clarify aspects of her testimony that she'd been too embarrassed to tell federal investigators, let alone the whole country. Even though there was little reason then or now to believe Hill was lying, Thomas was confirmed, albeit by the slimmest margin of any modern Justice, 52-48. 

It's easy to blame the failings of the Anita Hill case on the men who questioned her, and certainly none of them - not even then-chair Joe Biden - deserve to be let off the hook for their conduct. But equally as important in that debacle was the lack of a proper FBI investigation into her allegations. Without sworn testimonies from her and Judge Thomas, senators like Biden, Specter and Orrin Hatch could question her about trivial matters, like the subtle differences between her statements to investigators and the ones she made before the Senate. An FBI investigation could have made the difference in derailing Thomas's nomination, allowing him less legitimacy to claim that he was the victim of a "high-tech lynching."

It would make a world of difference here, too. The Senate has been given a rare opportunity to right the wrongs of 1991, and whether or not they repeat the same shameful fiasco depends on if they allow the FBI to conduct due diligence. "As a former prosecutor," Blumenthal said, "there’s no way I would put a crime survivor on the stand in front of a jury, let alone the American people, without a full investigation so that I know what the facts are before I start asking questions." 

Without one, he said, "the committee is going to be shooting in the dark."