Senator Jeff Flake just dropped a bomb on the Senate Judiciary Committee meeting. He voted to send the nomination of Judge Brett Kavanaugh to the full Senate for a vote, but said he will not vote next week to confirm Kavanaugh. Senator Flake said he wants to allow one week for the FBI to investigate the claims made against Kavanaugh by Christine Blasey Ford.
Please send this article to Senator Flake, and ask him to cancel his request for another FBI investigation.
This represents a huge victory for Senate Democrats, who have demonstrated that they will stop at nothing to prevent Judge Kavanaugh from becoming Justice Kavanaugh. They want a delay – any delay, for any reason – so they can scramble to find some other way to prevent his confirmation. If Senator Flake calls for an investigation into one set of unfounded, unproven, unlikely, refuted claims, what will stop him from calling for another week, and another, each time another set of unproven claims can be brought forward?
Why Does Flake Matter?
As of the time of the committee vote this afternoon, exactly 50 Senators had committed to vote yes. Senator Flake and Senator Joe Manchin, a Democrat from West Virginia, had both committed to vote to confirm Kavanaugh. With 50 ‘Yes” votes, Vice President Pence would come to the Senate and cast the tie-breaking vote.
With 50 ‘Yes” votes, Vice President Pence would come to the Senate and cast the tie-breaking vote.
That math meant that Kavanaugh was sure to pass, no matter how other Democrats voted, and no matter how Senator Susan Collins of Maine and Senator Lisa Murkowski of Alaska voted. By the sometimes confusing logic of the Senate, that made it more likely that both of the remaining Republicans and several Democrats would vote to confirm. It is easier for the Democrats to resist pressure from their leadership if their votes are not the deciding factors.
There are ten Democrat Senators up for reelection this year from red states, in varying degrees of danger of losing. Joe Manchin is in an especially tough spot. Although polling for the last several months has shown him with a nine or ten point lead, a new poll this week shows him in a tie. Judge Kavanaugh and President Trump both are very popular in West Virginia, and Manchin will pay a heavy price for voting against confirmation.
Flake’s possible defection could trigger ‘No’ votes from Collins and Murkowski, and prevent any other Democrats from joining the Republicans. Those of us who have watched the Senate for a long time know that Majority Leader Mitch McConnell is a deep thinker, and a master strategist and tactician. He will certainly have anticipated a last-minute cliffhanger, and will have prepared for it.
McConnell will not be operating alone, though. Every President has cards to play when he needs a critical vote. President Trump will be weighing in if McConnell calls on him. There is also another, unexpected ally. Former President George W. Bush has been lobbying Flake, Murkowski and Collins to confirm Judge Kavanaugh. He may find more success with Collins and Murkowski than he has so far with Flake.
What Do We Already Know?
Measure the evidence, as we have it. Dr. Ford claimed that young Brett Kavanaugh assaulted her 36 years ago. She has no corroborating evidence. In fact, there is significant evidence to refute her claim. Every person she named as a witness has said that no such party took place, or that they have no recollection of it.
When two stories are at odds, you choose to believe the one backed by the evidence.
Judge Kavanaugh has produced sworn statements from every person Dr. Ford mentioned, denying that they have any knowledge of the incident. He also has produced statements from scores of people who have known him his entire life, who testify that the behavior Ford described was at odds with his character. He was never that kind of guy.
Finally, we have the best evidence of all. Judge Kavanaugh his lived his entire life in a manner that shows complete respect for the dignity of women. When two stories are at odds, you choose to believe the one backed by the evidence.
What Would the FBI Do?
The really difficult matter about Flake’s request for a delay is that it will make absolutely no difference in the evidence. The FBI will go to all the people who have been named, and ask them for statements about Blasey Ford and Brett Kavanaugh. They will speak to the two principals themselves.
That is, they will go through exactly the same process they have gone through already six times before!
All these people have already given statements under criminal penalty – under oath. If they have lied in their statements, they will face felony prosecution. And they are under no obligation to speak to the FBI; they may decide that it isn’t worth the trouble.
The FBI will also go to former classmates, teachers, neighbors and others who knew the parties in question back in 1982, and ask them many questions. That is, they will go through exactly the same process they have gone through already six times before! For a quick overview of what an FBI investigation is like, please see my article from earlier this week.
When the FBI is finished plowing the ground they already have plowed six times before, they will assemble their reports and submit them to the Senate. They will not make any adjudication of the claims, but will simply go talk to whoever is willing to talk to them, and report the conversations to the Senate. And the Senate will be left again choosing whom to believe. The evidence will not change – the witnesses already have provided sworn statements.
Delay, Delay, Delay
The only thing that is sure to have changed upon receipt of the FBI reports is the date. It will be at least the 8th of October, one week into the new term of the Court. The Court divides its annual work into seven parts. Judge Kavanaugh will have been excluded from participating in one seventh of the cases for this term, including some of the weightier cases that will require a ninth vote.
Senate Democrats want a delay – any delay – so they can find some other way to prevent Kavanaugh’s confirmation.
Justice Roberts will have to grant writs of certiorari based on an expectation of a 4-4 split, rather than a probable 5-4 majority. That alone is a major victory for the Democrats. It will water down the impact of a Justice Kavanaugh. And they will work hard to find another person to bring another unsubstantiated charge against Judge Kavanaugh, to delay him yet again.
Their goal is to continue abusing the judicial system to achieve unpopular policy goals through the courts, instead of through democratic means. But that is the subject for another article. For now, please send this article to Senator Flake, and ask him to cancel his request for another FBI investigation. Tell him it is unnecessary, and will cast no additional light on the matter. He just has to vote with the evidence already in hand. Tell him to #ConfirmKavanaughNo
