This is a lightly edited transcript of an interview for The Daily Signal podcast.
Daniel Davis: Well, joining us in studio to discuss the ongoing battle over Brett Kavanaugh is Tom Jipping, he is the deputy director of the Meese Center for Legal and Judicial Studies here at The Heritage Foundation.
Tom, let’s start with Dr. [Christine Blasey] Ford. We heard her testimony. Your thoughts on how that went?
Tom Jipping: Well, her own opening statement was she simply read her prepared written testimony that she had previously submitted. The format, obviously, that they’re using is a little bit different than for the typical hearing. She had requested some real limitations on the amount of time that each senator had to ask questions. I’m sure Democrats didn’t like that, but that did come from Dr. Ford.
Republicans chose to have a single outside counsel—Rachel Mitchell, who is from Maricopa County, Arizona, who has a lot of experience in sex crime cases. They yielded their time to her to ask questions.
Democrats asked their own questions and I think that reflects a very different approach that Republicans and Democrats were taking to this particular hearing.
Katrina Trinko: Let’s talk a bit more about that use of the prosecutor, Rachel Mitchell. I have to say, watching the hearing, it was sometimes a little bit jarring to hear the Democrats’ very political questions contrasted with her questions, which to be honest, at times I was like, where are you going with this? [Questions such as] where was the polygraph administered? What kind of room in a hotel?
What do you think she was doing and did it succeed?
Jipping: Well, there’s pluses and minuses to the approach that Republicans took. Republicans really wanted to keep this hearing confined to the specific issue raised by Dr. Ford’s allegation against Judge Kavanaugh and to that end they had the prosecutor come in and ask more specific questions about those accusations, trying to get at the facts a little bit. The risk in that is that it kind of comes off like you’re cross-examining her as if you were in a criminal trial which, of course, this isn’t.
Democrats, on the other hand, wanted to approach this hearing very broadly as if it was just on the issue of sexual assault and so they asked very few questions of Dr. Ford and instead talked a lot about sexual assault and they talked about the dark culture in our country and all of these kinds of things.
The downside of that is that you really come across like you had described. You know, it comes across political. It comes across like they’re almost not interested in what Dr. Ford was really specifically saying.
At the end of the day, this comes down to Christine Ford has made quite an uncorroborated causation against Judge Kavanaugh and he has unequivocally denied it. I mean, that’s really what this is.
This hearing isn’t probably very well equipped to and it won’t really shed much light on that. I don’t think many senators, if any, have not made up their mind, and if they haven’t, I don’t think this hearing will probably help them do that.
Davis: A lot of senators have been at a loss for what standard to use. In a court of law, obviously, you have very clear standards of evidence and here, you know, it’s really court of public opinion and what people seem to think at the moment. What is the proper standard that we should be going by here?
Jipping: Well, that’s the challenge for this. It is that mixture, because this is a confirmation process after all. It’s not the criminal justice system. Republicans certainly didn’t have to bring in a prosecutor to help with the questions. I can see why they did that and it had some advantages, but this is not the criminal justice process so there aren’t rules like that. It’s not beyond a reasonable doubt. It’s not you have to establish people’s credibility and all this sort of thing.
It is, at the end of the day, a pretty political process. That’s what it always is. Not every process includes these kinds of accusations that need to be addressed, but this one does.
Some senators, like Kamala Harris of California, I think, were kind of talking out of both sides of their head because on the one hand, she said to Dr. Ford, you know, this is not a criminal court. You’re here voluntarily. Then, in order to criticize the majority for not asking for a separate FBI investigation, she cites a manual from the Maricopa County sex crimes unit about best practices and the need for outside investigations. Well, you can’t use the standards from a criminal justice process to criticize what is actually not the criminal justice process.
Trinko: Of course, one of the things that came up in this hearing was the—much sought after by the Democrats—FBI investigation, including some back and forth about whether that made any sense. Does this hearing change anything about whether it makes sense?
Jipping: Well, most people don’t understand the difference between a confirmation process and the criminal justice process. The FBI is involved in both, but the FBI’s role in the confirmation process is at the request of the executive branch because the confirmation process is a legislative branch process.
The FBI simply gathers information. It doesn’t make credibility assessments. It doesn’t figure out who is telling the truth. It doesn’t track down every lead the way they would in perhaps a criminal investigation. People don’t necessarily understand the difference, so it’s easy to confuse that and make it sound like Chairman [Chuck] Grassley [R-Iowa] and the majority really aren’t doing their due diligence.
I think since this kind of a thing is so rare in the confirmation process, this sort of conflict with this disruptive sort of accusation, I don’t really think it’ll have much an effect.
The downside is that Democrats know, especially those on the committee, they know that the FBI does not conduct the kind of investigations that they then said to the cameras should have been done.
There’s a little bit of deception going on there. The FBI does a good job, but it has a very limited role.
Davis: What do [Republicans] do from here?
Jipping: Well, no one came across as doubting or disputing that Dr. Ford was assaulted or that something traumatic like that happened. The question is whether Kavanaugh did it, and that’s where his unequivocal denial comes from.
I really think that this hearing was sort of a draw in that respect. It really didn’t answer that question specifically. It wasn’t geared to do that.
Senators are going to have to take what the hearing did provide, add that to what we have already been discussing for the last three months about Judge Kavanaugh and his record, and make a decision.
The Judiciary Committee is going to have to meet soon to decide whether to approve the nomination and send it to the full Senate where it will be debated.
I do think, if I were a betting man, that he will be confirmed. I think the chances of him getting any Democratic votes are probably less than they were before. I hope he still does because there’s no reasonable justification for having this much opposition to a highly qualified nominee.
Trinko: Speaking about being almost at the end of the process, do you think there’s any chance that either Deborah Ramirez, who accused Kavanaugh in The New Yorker, or the other woman, Julie Swetnick, who of course is represented by Michael Avenatti, who does not seem to claim she was assaulted herself but says there were a lot of parties with sexual misconduct that she alleges Kavanaugh participated in—do you think either of them gets a hearing?
Jipping: No. I think effectively the way it’s going to be treated is that Dr. Ford sort of stands in for all of those. Everybody knows that there’s even less corroboration for Deborah Ramirez and Julie Swetnick’s claims than for Dr. Ford’s. I mean, when The New York Times and The New Yorker interviewed dozens and dozens of people and cannot find any corroboration, then it’s probably a fairly weak case.
I think they’re effectively going to treat this one as sort of standing for all of them. As I said, I think it really does come to about a draw because certainly Judge Kavanaugh has denied all of them and saying that they did not happen.
Davis: Some have said if he gets confirmed, that the Democrats will later one day try to impeach him. Do you expect that that’s something they would try to do?
Jipping: I don’t think they would try to impeach him, but unfortunately maybe one of the worst results from all of this is that the one branch of government, the judiciary, that hadn’t really suffered a lot of credibility problems or attacks on their integrity, that they’re probably going to have that now.
Everybody thinks that members of Congress rank somewhere below psychics and car salesmen, but you know had fairly a positive idea about the judiciary. I think that’s going to suffer now.
Davis: How does this change future Supreme Court nominations? Do you think this sets a new precedent? A new degree of assault that every conservative nominee is going to have to face?
Jipping: Well, we’ve been on this trajectory now for about 35 years. You know, maybe certain tactics haven’t been used in the past, but the conflict is the same. The conflict is over how much power judges are supposed to have.
We all know that one side of the political spectrum puts all their eggs in the judicial power basket. They need the judiciary or they won’t get anything and so they are going to fight like crazy accordingly.
This isn’t new, unfortunately. Some of the tactics perhaps are. I think we’re going to be in this fight as long as we accept the idea that the judiciary has so much power that they literally can control the supreme law of the land. As long as that’s true, we’re going to be in these kinds of fights.
