Brett Kavanaugh Investigation by Merrick Garland Would Reopen Old Supreme Court Wounds

Senator Sheldon Whitehouse (D-RI) has asked Attorney General Merrick Garland to revisit the FBI's 2018 background check on Justice Brett Kavanaugh—a move that would reopen old wounds over the Supreme Court.

Kavanaugh was nominated to the court by former President Donald Trump and faced historic accusations of sexual assault, which he denied. Following a brief investigation by the bureau, the Senate approved Trump's choice.

Democrats raised questions about the FBI probe at the time and now that a Democratic administration is power, Whitehouse is asking the Justice Department to take a second look at what he calls a "fake" investigation, in order to help the Senate provide "proper oversight."

Whitehouse's request could sets up a highly unusual situation. The Supreme Court nominations of Kavanaugh and Garland were among the most controversial of recent years.

Former President Barack Obama chose Garland to succeed Antonin Scalia in 2016, but the Republican Senate majority refused to hold hearings on the nomination in an election year. The open seat was later filled by Trump appointee Neil Gorsuch.

Kavanaugh was Trump's second Supreme Court pick, after the retirement of Anthony Kennedy. The nominee was accused of sexual assault by psychology professor Christine Blasey Ford, who testified before the Senate Judiciary Committee.

There were other accusers who were not called as witnesses. Kavanaugh denied all the allegations, but his emotional and combative testimony was criticized by Democrats and even mocked by Saturday Night Live.

The FBI did not interview Kavanaugh or Ford in its investigation and Whitehouse has claimed in a letter to Garland that people who wanted to share information with the bureau were unable to do so. He said this was because they could find nobody at the FBI who would accept their testimony and there was no individual designated to receive or gather evidence.

"This was unique behavior in my experience, as the Bureau is usually amenable to information and evidence; but in this matter the shutters were closed, the drawbridge drawn up, and there was no point of entry by which members of the public or Congress could provide information to the FBI," Whitehouse said.

Whitehouse also said senators were not informed about how information from a dedicated FBI tip line was processed and reviewed.

"This 'tip line' appears to have operated more like a garbage chute, with everything that came down the chute consigned without review to the figurative dumpster," the senator said.

Whitehouse is also interested in Kavanaugh's finances. After joining the D.C Circuit Court of Appeals in 2006, Kavanaugh ran up significant debts. Borrowing with three credit cards and a loan against his retirement account, he owed between $60,000 and $200,000 in 2016, according to The Washington Post.

These debts were apparently wiped by the time he was nominated to the Supreme Court. Kavanaugh's disclosures to the Senate Judiciary Committee did not show any financial windfall that might account for this. Questions were raised about this in 2018 and Whitehouse has linked it to so-called dark money in the judicial nominations process.

There is no indication yet whether Garland will review the 2018 FBI investigation. If the attorney general chooses to do so, it will reopen one of the most difficult Supreme Court nominations in recent memory. And after a third Trump nominee, Amy Coney Barrett, was appointed to the court just weeks before the 2020 election, it will also renew the focus on Garland's status as the justice who might have been.

Attorney General Merrick Garland
Merrick Garland listens during his confirmation hearing before the Senate Judiciary Committee on February 22. Garland, now attorney general, was denied a hearing by Senate Republicans when he was nominated to the Supreme Court in 2016. Al Drago/Getty Images