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Supreme Court needs to overhaul confirmation process

October 6, 2018

The confirmation process of federal Judge Brett Kavanaugh to the Supreme Court has been a sorry spectacle, from start to finish. No matter the outcome, it was clear to all that this is a process that is not working and should be reformed.

Thats why the Star Tribune Editorial Board joins the call for changes that could restore integrity and a measure of independence to what has otherwise become a damaging exercise in partisan gamesmanship.

It starts with taking seriously the advise and consent role of the U.S. Senate on high court confirmations. As the nation learned this week, there never was what one might consider a true FBI investigation into Kavanaughs background. The FBI was not acting in its capacity as a law enforcement agency with a broad mandate. Its charge was a more limited background check for a White House that has an obvious interest in not derailing its own nominee.

Even when they reopened the check, agents never interviewed the primary figures in this drama, Kavanaugh and his accuser, or other relevant figures, because that was outside the scope of what the White House would permit President Donald Trumps earlier public comments about their ability to do whatever was needed notwithstanding.

The limited nature of these background checks is also likely why, in previous multiple FBI investigations, no agent apparently ever contacted Kavanaughs college roommate or others who might have illuminated portions of Kavanaughs life that he would have preferred to remain in shadow.

The Senate should, as others have pointed out, conduct its own independent investigation of a nominee, rather than accepting a report with an obvious conflict of interest. Obviously, this could not be done for every Senate confirmation. But lifetime appointments to a separate branch of government are another matter. They endure far past the nominating executive, and should be held to the highest standards.

The FBI could conceivably still conduct such checks, but only as a fully independent agency, confined by no special requests, and reporting to the Senate as the confirming body, not to an executive intent on getting a nomination through. All members of the Judiciary Committee should have equal access to whatever information is obtained.

In addition, this board renews its call for a restoration of the 60-vote rule jettisoned by Senate Republicans in their zeal to seat Justice Neil Gorsuch. His selection followed the unsuccessful nomination of Judge Merrick Garland, chosen by President Barack Obama but denied a hearing by the Republican majority. A supermajority provides a guard against extremism and an inducement for cooperation within the Senate.

Finally, the Senate must commit to full and fair consideration of whomever a president nominates, no matter at what point in the term. The concept of the Supreme Court as a dispassionate arbiter of this nations laws should not be discarded by those who wish to turn it into just one more partisan arena.

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