A dramatic last-minute demand by Republican Senator Jeff Flake on Friday prompted President Donald Trump to order an FBI investigation into his Supreme Court nominee Brett Kavanaugh over sexual misconduct allegations. The allegations have riveted the country and imperilled his confirmation chances.
With tempers flaring on both sides, the Republican-led Senate Judiciary Committee approved Kavanaugh’s nomination and sent it to the full Senate over Democratic opposition, with Flake providing the decisive vote. But Flake, a moderate Republican who is retiring from the Senate in January, cast his vote only after asking the panel to request that the Trump administration pursue an FBI probe of the explosive allegations against Kavanaugh and delay a final Senate confirmation vote for up to a week to let the investigation run its course. Trump granted the request.
Flake’s action came a day after the committee’s jarring and emotional hearing into the allegations against Kavanaugh that gripped the country, with a university professor named Christine Blasey Ford accusing him of sexually assaulting her in 1982 when both were high schools students in Maryland. Kavanaugh denied the accusation. In a statement issued by the White House, Kavanaugh said he would cooperate with the FBI. “Throughout this process, I’ve been interviewed by the FBI, I’ve done a number of ‘background’ calls directly with the Senate, and yesterday, I answered questions under oath about every topic the Senators and their counsel asked me. I’ve done everything they have requested and will continue to cooperate,” Kavanaugh said.
The prospect of a new investigation put the confirmation chances for Kavanaugh, a conservative federal appeals court judge nominated for a lifetime job on the top U.S. court, in further jeopardy in a Senate only narrowly controlled by Trump’s fellow Republicans. Democrats, who have opposed Kavanaugh’s nomination from the outset, had called for an FBI probe, but Republicans and Trump had opposed the move.
If confirmed, Kavanaugh would consolidate conservative control of the nation’s highest court and advance Trump’s broad effort to shift the American judiciary to the right. “This country’s being ripped apart here,” Flake, with a pained look on his face, told his fellow senators about the nomination fight. “I think we can have a short pause,” he added. “We ought to do what we can to make sure that we do all due diligence with a nomination this important,” said Flake, who earlier in the day announced he would vote for Kavanaugh in the committee.
Even before Flake’s announcement, it was unclear if Republicans had the votes to confirm Kavanaugh on the Senate floor. Republicans hold a slim Senate 51-49 majority, making the votes of two other so-far undecided Republican moderates crucial: Lisa Murkowski and Susan Collins. Trump said Murkowski and Collins must do what they think is right. Murkowski and Collins said they supported Flake’s move, as did moderate Democrats Joe Manchin and Heidi Heitkamp, who have not yet announced how they will vote on Kavanaugh.
“I’m going to let the Senate handle that. They’ll make their decisions. And they’ve been doing a good job,” Trump told reporters in the Oval Office when told about Flake’s move.
The Republican president, however, indicated he was sticking with Kavanaugh’s nomination, saying he has not thought “even a little bit” about replacing him. Ford’s lawyer, Debra Katz, welcomed the investigation and thanked the senators who pushed for it but decried the limits imposed on it. “A thorough FBI investigation is critical to developing all the relevant facts,” Katz said.
The committee advanced the nomination 11-10 along party lines. On the Senate floor, Trump can afford to lose the vote of only one senator in his own party if all the Democrats vote against Kavanaugh and Vice President Pence casts a tie-breaking vote.
Just before the scheduled vote in the committee, Flake left the room to talk to some Democrats, adding turmoil to the proceedings. During the delay, senators and aides could be seen in the committee room having hushed conversations, with some going back and forth to an anteroom of the committee chamber.
Democratic Senator Chris Coons played an important role in the negotiations.
Earlier in the day Flake, who had previously raised concerns about the allegations against Kavanaugh, said Ford gave “compelling testimony” but Kavanaugh provided “a persuasive response.”
Soon after Flake made his announcement that he would vote for Kavanaugh, the senator was confronted in an elevator while on his way to the committee meeting by two protesters who said they were sexual assault survivors.
“That’s what you’re telling all women in America – that they don’t matter, they should just keep it to themselves,” one of the protesters shouted at Flake in an exchange aired by CNN.
“I need to go to my hearing. I’ve issued my statement,” Flake said.
The timing of the panel’s session gave committee members little time to digest Thursday’s extraordinary testimony from Kavanaugh and Ford. Kavanaugh accused Democrats of a “calculated and orchestrated political hit.”
Trump said he found Ford’s testimony “very compelling” and Kavanaugh’s angry and defiant response “incredible.”
Before Flake’s move, committee Republicans voted down a Democratic motion seeking to subpoena Mark Judge, a Kavanaugh friend who Ford said witnessed the assault. Judge had told the committee in a written statement he does not recall any such incident. He is likely to be central to any FBI probe.
“If the FBI or any law enforcement agency requests Mr. Judge’s cooperation, he will answer any and all questions posed to him,” said his lawyer, Barbara Van Gelder.
As the committee set its vote, some Democrats left the room in protest. “What a railroad job,” Democratic Senator Mazie Hirono said. One Republican, Senator John Kennedy, called Kavanaugh’s confirmation process “an intergalactic freak show.”
Senator Dianne Feinstein, the committee’s senior Democrat, called Kavanaugh’s remarks unseemly for a judicial nominee.
“This was someone who was aggressive and belligerent. I have never seen someone who wants to be elevated to the highest court in the country behave in that manner. In stark contrast, the person who testified yesterday and demonstrated a balanced temperament was Dr. Ford,” Feinstein said.
After Flake’s move, some of the partisan rancor appeared to dissipate.
“We had a good day today by moving the nominee, a good day. We’re very happy with the progress we made,” Republican Committee Chairman Chuck Grassley said.
The controversy has unfolded just weeks ahead of the Nov. 6 congressional elections in which Democrats are trying to seize control of Congress from the Republicans, against a backdrop of the #MeToo movement against sexual harassment and assault.
The American Bar Association, which earlier endorsed Kavanaugh, and the dean of Yale Law School, which Kavanaugh attended, also called for an FBI probe on Friday, the first indication of the legal profession turning on the nominee.
Kavanaugh could be the deciding vote on contentious legal issues if he is confirmed to the nine-member court, with disputes involving abortion, immigration, gay rights, voting rights and transgender troops possibly heading to the court soon. The court begins its next term on Monday, down one justice after the retirement of conservative Anthony Kennedy effective in July. Trump nominated Kavanaugh to replace Kennedy.