Former Labor Committee Chair, Senator Orrin Hatch (and the author)

Former Labor Committee Chair, Senator Orrin Hatch (and the author)

A long time ago, in the 80s, Senator Orrin Hatch (R-Utah) asked, given my background as a federal prosecutor, if I would investigate whether the FBI withheld information from the U.S. Senate Labor Committee during the confirmation hearings of Labor Secretary Nominee, Raymond Donovan, then President of the Schiavone Construction Company in New Jersey, and nominated by President Ronald Reagan.

As Senator Hatch’s Special Counsel, we uncovered the fact that the FBI had consciously and purposefully withheld information they had on a federal wiretap that Mr. Donovan was “mobbed up.”

The FBI, perhaps at the behest of the White House, denied the Senators this critical information by which they could decide to consent (or deny) Mr. Donovan’s confirmation.

You’d think that, from the 80s to now, we’d have learned how important it is to run a thorough background investigation.

The current confirmation hearings of DC Circuit Judge Brett Kavanaugh ran aground because the Trump Administration authorized a narrow FBI background investigation, and the U.S. Senate, courtesy of Judiciary Committee Chair , set a too short timetable for the inquiry to be deliberate or effective.

When Chair Grassley gaveled his committee hearings to order, Committee Members complained they had received thousands of pages of documents made available only the evening before.

The Chair refused to continue the hearing so anyone could actually study the documents, citing a Committee rule that did not exist to bar the motion.

If “due process” means “fundamentally fair,” and it does, these hearings screamed unfair.

Before any sex misconduct charge against “His Honor” was unearthed, many of us observers who have clerked and practice law, found quite unsettling Judge Kavanaugh’s sworn conflicting testimony that Roe v. Wade was “settled law,” flying in the face of an earlier memo the Judge wrote, as an aide in the “Bush White House,” claiming that, oops, Roe was NOT settled law.

Judge Kavanaugh also favored an almost dictatorial Chief Executive, set aside from the law, immune to subpoenas and criminal process.  Mr. Trump likely relished such an Associate Justice given his paranoia that Special Counsel Mueller was coming for him, and he could use a friendly justice on the High Court.

Then, there was a quite dramatic turn.


Dr. Christine Blasey Ford said Judge Kavanaugh, 17 at the time, assaulted Dr. Ford when she was 15, with Kavanaugh’s laughing drinking buddy, Mark Judge. looking on.  Funny, Judge may have saved Dr. Ford from having her clothes torn off or worse.  Judge jumped on both of them, and she got away.

Dr. Ford told her husband about the incident years ago, also a therapist, long before Judge Kavanaugh’s nomination; more recently, a polygraph supported the conclusion that Dr. Ford was telling the truth.

Senator Lindsey Graham, Trump’s eager lap dog, kept saying publicly, as has Trump himself, we don’t know when it happened, and dismissed her claims, while saying they respected her right to make her claims.  Such rhetorical acrobatics!

Dr. Ford said she could fix the date if she could just confirm the year that Mark Judge worked at a local Safeway, because she saw him there weeks after this terrible incident.

Judge Kavanaugh had strangely kept his High School calendars from 1982, and offered them in defense of these charges.

Instead he helped to prove Dr. Ford’s claim; in his own hand, in different inks, he wrote he attended a weekday party on July 1, 1982, accompanied by an inebriated Mark Judge.

Mark Judge also helped focus the date in his book, “Wasted – Tales of a Gen X,” about his black out drunken days in High School, and of a Bart O’Kavanaugh, who drank and barfed, and Judge identified that year he worked at Safeway – in his junior year – 1982.

Judge Kavanaugh’s testimony “evolved” through three iterations to conform with the emerging facts.

Judge Kavanaugh admitted, while shouting and crying at the Committee, when not mouthing off at certain Senators, to drinking under age, going to parties, and to a virginal innocence, accompanied by devotion to the church, “lifting,” studying, and, quite remarkably, he charged, without any evidence at all, all his troubles were the Clintons trying to get him.

Republican Arizona Senator Jeff Flake’s belated attack of conscience derailed the “Grassley confirmation engine,” when he insisted there had to be a further investigation of Judge Kavanaugh’s “background” – especially given the additional sexual misconduct charges.

We are in the week set aside for that investigation and it suffers from an anorexic curiosity to truly investigate, both by the McConnell-Grassley team, and by White House Counsel Don McGahn.

In truth, we already have enough to deny confirmation.

We have a reasonable doubt that Mr. Kavanaugh is suitable to serve on the Court.

Indeed, we should really be considering impeachment, and removing him from the DC Circuit.