Brett Kavanaugh’s Supreme Court nomination has hit a snag in the United States Senate, the day before Republican leaders reportedly planned to start voting on his confirmation on the Senate floor. Those plans have now been thrown into doubt.
Sen. Jeff Flake (R-AZ), a closely watched swing vote on Kavanaugh’s nomination, took a stand Friday at the Senate Judiciary Committee hearing. He said he wants the FBI to reopen its background investigation into Kavanaugh to vet the sexual assault allegations made by Christine Blasey Ford. Flake heavily implied, but did not say outright, that he would vote against Kavanaugh’s confirmation on the Senate floor unless his wishes were met.
Flake’s announcement followed a dizzying flurry of activity at the committee’s Friday hearing, with senators ducking in and out, whispers at a high pitch, and nobody sure what was going on.
Here is the deal, in Flake’s own words:
I think it would be proper to delay the floor vote for up to but not more than one week in order to let the FBI do an investigation, limited in time and scope to the current allegations that are there, limited in time to no more than one week. And I will vote to advance the bill to the floor with that understanding.
He still voted in favor of sending Kavanaugh’s nomination to the Senate floor shortly after making his statement. But that was a largely meaningless vote, since Senate Republican leader Mitch McConnell could put Kavanaugh’s nomination on the floor at any time, regardless of what the committee does. Republican leaders also are not bound by any agreement Flake reaches with Republicans or Democrats on the Judiciary Committee. The committee, on a party line, has voted in favor of Kavanaugh’s nomination, which could now be brought to the floor.
McConnell said Friday afternoon he still plans to move forward with the previously planned procedural vote on Saturday, but agreed to delay the final vote by a week so the White House could request the investigation.
In other words, we just don’t know how big the snag is yet.
What all this means for Kavanaugh’s confirmation is still unclear
If Flake is joined by Sens. Susan Collins (R-ME) and/or Lisa Murkowski (R-AK) in opposing Kavanaugh’s nomination without further FBI investigation, two GOP senators would be enough to block his confirmation — assuming Democrats are united against it.
Flake didn’t explicitly say he would vote against Kavanaugh on the Senate floor unless the investigation is reopened. But he heavily implied it.
“I will only be comfortable moving forward on the floor until the FBI has done more investigation than they have already,” the retiring Arizona senator said.
Collins and Murkowski told reporters Friday afternoon that they supported Flake’s proposal.
Senate Judiciary Chairman Chuck Grassley released a statement Friday afternoon:
The Senate Judiciary Committee will request that the administration instruct the FBI to conduct a supplemental FBI background investigation with respect to the nomination of Judge Brett Kavanaugh to be an Associate Justice on the Supreme Court.
The supplemental FBI background investigation would be limited to current credible allegations against the nominee and must be completed no later than one week from today.
At Thursday’s hearing with Kavanaugh and Ford, Democrats emphasized again and again the lack of an FBI investigation into the sexual misconduct allegations against Kavanaugh. At one point, Sen. Dick Durbin (D-IL) effectively begged the nominee to request an inquiry, and Kavanaugh sat stone silent for seven seconds before saying he’d welcome whatever the committee wanted to do.
Technically, it is the White House that would need to request reopening the FBI background check, something President Donald Trump has seemed reluctant to do — but it’s something they might do if it buys them more time to get moderate senators onboard with Kavanaugh.
Trump said after Flake’s remarks: “They have to do what they think is right. They have to be comfortable with themselves.”
Republicans and Kavanaugh have also pointed out repeatedly that the FBI does not reach its own conclusions in these investigations. But Democrats have argued that basic fact-gathering would be valuable for senators to make a decision about Kavanaugh’s nomination and the allegations against him.
Flake said in his statement at Friday’s hearing that Democrats had raised legitimate questions about whether more investigation was needed.
Where does this leave Democrats?
Democrats left the hearing room Friday unclear if they had successfully secured an FBI investigation or just hit some second-guessing on Flake’s part.
Sen. Kamala Harris (D-CA), laughing, said she didn’t know what to make of Flake’s comments.
“I can’t even. I don’t know. I don’t know how to react to that,” Harris said.
Meanwhile, Sen. Amy Klobuchar (D-MN) made it clear that nothing had been agreed on.
“There’s not really a set agreement,” Klobuchar told Vox. “To be very clear, this isn’t some cross-the-Ts, dot-the-Is agreement. But we are interested in, for the good of the country, having this follow-up investigation.”
Sen. Joe Manchin (D-WV), a red-state Democrat up for reelection this year and undecided on Kavanaugh’s confirmation, also said he supports Flake’s move, as does Sen. Heidi Heitkamp (D-ND).
In either case, there’s an understanding that Republicans still don’t have the votes for Kavanaugh’s confirmation, and if Flake stands firm, Republican might have no other option than to answer Democrats’ longstanding call for an FBI investigation.
Jeff Flake has made a lot of threats — and rarely followed through
There’s one big reason to be skeptical of this seriously derailing the Kavanaugh confirmation. Jeff Flake has a habit of making big threats to block Republican plans, only to vote with the majority in the end.
He has made a lot of stern speeches criticizing President Trump, but hasn’t yet bucked his party on major floor votes. If he decides to go against his party and vote “no” on Kavanaugh, it would be the first time.
Most famously, Flake repeatedly threatened to vote against the tax bill unless his demands on the legislation and immigration were met — and then he supported the bill without any particularly meaningful concessions. As Vox’s Ella Nilsen wrote at the time:
In exchange for his vote, Flake was promised nothing more than a seat at the table — not any specific policy concessions or a timeline for when the agreement might happen.
“Giving protections for those kids — that’s what I hope comes out of it,” Flake told Vox. “Obviously they can’t commit to do that, but they’ve committed to move forward with me and work with me on that.”
The Senate memorably failed to pass any immigration bill, even though several were put up for a vote on the floor, despite Flake’s efforts to tie the issue to his vote on the tax bill.
As for Kavanaugh’s nomination, for now, no one seems to know what exactly happens next.