Feinstein’s Last Minute Accusations and Senate Rules

How could Diane Feinstein wait until the last minute to introduce the accusation of Christine Blasey Ford against Brett Kavanaugh? Senate rules allow it. See also here. As long as a hearing has not been completed, the “Minority Witness Rule” allows the minority to call witnesses.

“Whenever any hearing is conducted by a committee (except the Committee on Appropriations) upon any measure or matter, the minority on the committee shall be entitled, upon request made by a majority of the minority members to the chairman before the completion of such hearing, to call witnesses selected by the minority to testify with respect to the measure or matter during at least one day of hearing thereon.”

In the Senate, a committee minority has some ways and means to check the majority. The Minority Witness Rule is one of these ways.

Nevertheless, last minute accusations are unfair to everyone involved in the process, the main reason being that a Senate hearing is not a trial and not subject to the orderly processes of a trial. To avoid such last minute accusations and the resulting chaotic developments, the Senate could alter its witness rules. Prior to the hearing, it could, for example, issue a call for witnesses who wish to lodge criminal accusations. It could require that any witness who accuses a candidate of a felony make that accusation before the hearing begins, or otherwise forfeit the opportunity to testify before the committee. The committee could then submit the charges to its investigating authorities and use their findings in deciding upon its list of witnesses.

If it be argued that this process allows the majority to steamroll a nominee against whom there is substantial evidence of wrongdoing, the answer is that the checks lie in the hands of voters. This means that voters must be privy to findings of investigations. Naturally, if no charges are brought, that in itself provides information.

In the current case, the Kavanaugh confirmation hearing began on September 4, 2018. Ms. Ford had written a letter to Diane Feinstein on July 30, 2018. On September 13, “Senate Democrats disclosed that they had referred a complaint regarding President Trump’s Supreme Court nominee, Judge Brett Kavanaugh, to the F.B.I. for investigation. The complaint came from a woman who accused Kavanaugh of sexual misconduct when they were both in high school, more than thirty years ago.” Ms. Ford made known her identity on Sept. 16. Feinstein notified the FBI on September 12.

The fact is that Feinstein waited 6 weeks before starting procedures within the established institutions of the Senate and FBI. She waited until the hearings were in progress. This can be explained in a number of ways, one of which is that Ford requested confidentiality. However, Feinstein should have told her immediately that with charges of such consequence, keeping her name confidential would be impossible as well as judicially unfair. Feinstein did Ford and everyone else a disservice. Feinstein should have given Ms. Ford a day or two to make up her mind either to reveal her identity or withdraw the charges. Feinstein could then have informed the committee if Ford decided to move ahead, and this would have occurred weeks in advance of the hearings.

Ms. Ford had a right to be heard, but she had no right to accuse behind a cloak of anonymity. Every person has a right to confront accusers. Feinstein should have told Ford this and proceeded accordingly. Judge Kavanaugh has a right to be heard and prepare his case against such accusations. Senator Feinstein had a right to delay, even if it was a dishonorable course of action motivated by politics. We in the public all have a right to an orderly vetting process that’s fair and conducted honorably, even if we disagree with Supreme Court decisions or do not support this nominee. Feinstein interfered with everyone’s rights.


10:00 am on September 27, 2018