Should The Process Of How Judicial Nominees Are Evaluated Change?

Oct 2, 2018
Originally published on October 2, 2018 9:56 pm
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AILSA CHANG, HOST:

The political firestorm over Brett Kavanaugh has raised lots of questions about how judicial nominees are evaluated. But could it lead to changes in the process? NPR national justice correspondent Carrie Johnson has been posing those sorts of questions to lawyers who've been responsible for vetting judges. Carrie joins us now. Hey, Carrie.

CARRIE JOHNSON, BYLINE: Hi, Ailsa.

CHANG: So potential judges already have to complete a pretty thorough and very long questionnaire. Is it surprising that the White House didn't catch any of these allegations of sexual misconduct in Brett Kavanaugh's case?

JOHNSON: It's true that judge candidates get asked a bunch of questions known in shorthand as the sex, drugs and rock 'n' roll questions, things like did you abuse alcohol or drugs? Did you have a rap sheet? What about financial improprieties? But those questions usually start at age 18 and go forward, and this allegation by Christine Blasey Ford against Brett Kavanaugh happened when he was 17 years old.

CHANG: Right.

JOHNSON: To be clear, Kavanaugh has denied any sexual misconduct, but there were plenty of hints about his use of alcohol from that high school yearbook entry to his fraternity at Yale, which was known for raucous parties, to his own speeches once he got on the federal appeals court here in Washington, D.C., words like what happened at Georgetown Prep stayed at Georgetown Prep and a time in a speech when he reminisced about a baseball outing at Yale where people stumble drunk off the bus in the predawn hours.

CHANG: I mean, what - could what is happening with Brett Kavanaugh's confirmation lead to changes in the way the FBI conducts background investigations in the future, you think?

JOHNSON: The lawyers I've talked to have pointed out the system has adapted in the past. For instance, in the 1990s, questions about paying taxes for landscapers and babysitters came up after some nominees...

CHANG: Right.

JOHNSON: ...For Cabinet positions ran into trouble. Boyden Gray, who handled judge nominations for President George H.W. Bush, told me the FBI might go back deeper into a nominee's background, into high school, for instance. But he says when it comes to allegations of sexual assault, the situation is complicated.

BOYDEN GRAY: It's sort of scary. It's thought that one allegation with no backup - no I don't know how I got there, I don't know where I was, I don't know how I got home - there's nothing for the accused to look at to say, well, I have an alibi for this. How can you disprove nothing?

JOHNSON: Now, it's important to say that supporters of Christine Blasey Ford say she does remember several key details about that night in 1982 and that another accuser, Deborah Ramirez, has come forward with concerns about Kavanaugh at Yale.

CHANG: Brett Kavanaugh - he has made it clear that he has already been through six separate background checks for government jobs over the years. Do we know if any of those background checks revealed allegations for anything that's been mentioned so far? Were they caught in any of those reports?

JOHNSON: Those background check reports are secret. The White House and the Senate Judiciary Committee led by Republicans have said they did not capture a whiff of sexual impropriety when it came to Brett Kavanaugh. And we do know that there are some clues that Kavanaugh was asked about his finances, maybe some other allegations, in a private hearing with the Senate Judiciary Committee this year. But that hearing has remained mostly private. I reached out to Ron Klain, who helped President Bill Clinton vet judges. Klain says there could be another issue. The White House counsel's office under Donald Trump is understaffed, and they've been pushing through judges at a record pace.

RON KLAIN: I do wonder if the bakery is just producing too many cakes, and maybe they're not each getting the attention they deserve.

JOHNSON: By contrast, Ron Klain says, President Clinton stopped all the other judges while he pushed through Ruth Bader Ginsburg on the Supreme Court. But judges are central to Donald Trump's legacy and his main way of pleasing his political base, so I don't expect to see a letup there in this pace.

CHANG: All right. That's NPR's Carrie Johnson. Thanks, Carrie.

JOHNSON: My pleasure. Transcript provided by NPR, Copyright NPR.