Why weren't allegations based on Judge Kavanaugh's 1983 yearbook, raised during his nomination in 2006 to the DC Circuit?

Question

I refer only to the allegations based on the Hon. Judge Kavanaugh's 1983 yearbook from Georgetown Preparatory School (like 'Renate Alumnus', and alcoholic consumption slang), and not those that were only mooted in 2018 (like from his 3 female accusers, as of Oct. 3 2018).

I know that SCOTUS is more powerful than the United States Court of Appeals for the District of Columbia Circuit, but this is a federal appellate court that is 'arguably the most important inferior appellate court'.

1. Why weren't these unfavourable allegations based on his yearbook mooted then in 2006, when he was nominated to the DC Circuit?

2. Checking yearbooks can't be that burdensome or mind-boggling. Did nobody bother to examine his yearbook?

Answer 1

4 points here:

• As you state, SCOTUS is the most important court. Rulings made by Kavanaugh at his current position may set precedents in case law, but they (no matter how important is his current position) could be reverted by SCOTUS. Kavanaugh rulings as SCOTUS justice could not reverted by a superior court. So his influence as a SCOTUS member would be way greater.

  Also, by its very nature, the cases before SCOTUS are more political in nature, as they involve the final decision in what the Constitution of the USA means.

  Being more important brings more scrutiny. In fact it is often said that one of the most important decisions of any POTUS is their pick for SCOTUS, as that decision will usually outlast the POTUS term and cannot be reverted.

• There was not much to check. Kavanaugh's activities during his student years have come into question in relation to the claims that Kavanaugh's did sexually assault some women. Without those women's testimony, there was no special interest in checking his university years intensively, and even if you check in depth all that is to be found is some heavy drinking, some minor incidents and some outrageous declarations.

• Times are changing. As it has been reported by the press, Kavanaugh is not the first SCOTUS nominee to face charges of sexual abuse. But after the "Me too" movement has given an idea of how widespread sexual abuse is, it is not so easy to just dismiss those.

• Kavanaugh himself made the issue important. He could have just said "Yes, I did party a lot, but I did never abuse any woman. And now I have realized that I should be more moderated with alcohol and I am a more centered person."

  But in a TV interview he went out of his way, when denying the sexual assault accusation, to claim that he had been a model student who was never drunk and never went to party. Once witnesses and records have cast very serious doubts about this claim, his veracity when claiming that he never did abuse any woman can be called into question.

Answer 2

Two main reasons:

1. The stakes are far higher now. We're talking about a Supreme court seat that can tilt the ideological majority.

2. The key point really: these are relatively trivial compared to the main issues; they are only brought up as supplementary to the serious accusations. As such there was not much point searching yearbooks for the possibility of finding something on this level

Answer 3

How do we know that his yearbooks were NOT checked?

I think I am learning a lot more about the FBI background check process than what I previously (intuitively) thought I knew.

For example, the client agency tells the FBI the parameters who and what to look at. Also, that the contents of a FBI background check are confidential.

If both these things are true, we cannot know if something was investigated or not without breaching confidentiality.

(What is not clear at the moment is if the directive to the FBI from Don McGahan is confidential)

I realize that is a less than satisfying answer.

Answer 4

Thus did nobody bother to examine his yearbook?

Correct. Which makes sense. If someone is an idiot now, it is unlikely that the person stopped making idiot statements. So the investigators tend to check statements and actions from the last ten years or so (example source). The normal assumption is that if someone was an idiot in high school, that the person grew up prior to being nominated for a judgeship. So why check high school statements?

I'm unsure how universal the United States treatment of yearbooks is. In the US, it is typical for people to write in each other's yearbooks. So to really investigate, they couldn't read just one yearbook. They would want to read the yearbooks of all the classmates, especially the friends. Because that's where they'd find things written by or about Brett Kavanaugh or whomever they were investigating.

They still didn't check the yearbook during the Supreme Court investigation. They only checked it when the last minute allegations arose. At that point, he had already passed the normal investigative process. The current investigation is in addition to that.

In this case, the accusations come from the high school and college years, so people are looking more closely. And because Democrats oppose the nominee, they are looking for any excuse to make him look bad. Politicians have incentives to act this way.

This is why it is preferable to bring up allegations like this early in the process. Then the normal investigation would have uncovered this stuff and generally ignored it unless it had more serious implications. So instead of pointing out that an entitled rich kid was doing entitled rich kid things in high school, it could concentrate on more recent information or more legally relevant information.

Note that as a general rule, the information in Kavanaugh's yearbook doesn't say anything indicating that he attempted to rape Christine Blasey Ford on its face. There are a couple things that can be interpreted as indicating that he wanted to participate in a threesome. The claims here are that he drank too much in high school (and later in college). A typical FBI investigation would focus more on whether he drinks too much now, possibly by looking at behavior in the last few years.

There is some risk that Republicans will start treating Democratic nominees the way that Kavanaugh has been treated. They may start looking in older material for things that are not illegal but simply unseemly. That seems unlikely to make nominees better (unless your definition of better is someone with few close friends in high school), but it could allow them to score political points.

And if Republicans treat future Democrats this way, Democrats will certainly respond in kind.