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Opinion Jeff Flake’s call for FBI investigation throws wrench in Kavanaugh machine

Sen. Jeff Flake (R-Ariz.) said Sept. 28 he would vote for Supreme Court nominee Brett M. Kavanaugh, but that wasn't always his stance. (Video: Allie Caren/The Washington Post)

It’s not over ’til it’s over.

The Senate Judiciary Committee on Friday voted on party lines, 11-10, to approve Brett M. Kavanaugh’s nomination to the Supreme Court. If there was one Republican who might have voted against Kavanaugh, it was Sen. Jeff Flake (R-Ariz.), who is leaving the Senate at the end of this term and has on occasion criticized President Trump, unlike most of his GOP colleagues.

Flake voted to move Kavanaugh’s nomination forward. But just before the vote was taken, Flake made a surprising announcement.

“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 continue — to do an investigation, limited in time and scope to the current allegations that are there,” he said, “and I will vote to advance the bill to the floor with that understanding.”

So what happens now? It’s complicated.

The Senate calendar is controlled by Majority Leader Mitch McConnell (R-Ky.), who could under ordinary circumstances schedule the vote for whenever he chooses; it was assumed that it would take place next week, preceded by a floor debate on the nomination. But if Flake joins with the 49 Democrats, they’d have at least 50 votes to refuse to move the nomination forward until there’s an FBI investigation. In theory, that could mean a tie that would be broken by Vice President Pence.

But Flake has been discussing this matter with members of both parties. In the last 24 hours he has been seen huddling with moderate Republicans like Sen. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska), with rumors circulating that they had decided to act as a bloc. That might mean that they’ve all decided to vote yes on Kavanaugh together. It might also mean that they’ve decided to seek this delay together.

And not long after Flake made the announcement, we learned that Murkowski is joining him in calling for an investigation. So is Sen. Joe Manchin III (D-W.Va.), who is also considered a key swing vote. So it appears that until such an investigation is carried out, the vote isn’t going to take place.

As Supreme Court nominee Brett Kavanaugh faces a sexual misconduct allegation, columnist Ruth Marcus asks, who's responsible for the burden of proof? (Video: Gillian Brockell/The Washington Post)

There’s one other player involved, however. The White House has to instruct the FBI to carry out the investigation. What if the White House refuses? You might think President Trump would say this has all been settled, Kavanaugh has been voted out of the Judiciary Committee, and now it’s time for the floor debate and a final vote. Is he inclined to create that kind of standoff? Perhaps, but probably not, since at the moment the Senate is able to put the nomination in limbo and he can’t force them to move it forward.

More time for an investigation might not change the ultimate result. A pivotal figure in this is Mark Judge, whom Christine Blasey Ford claims was an accomplice in Kavanaugh’s alleged sexual assault on her. Today, Judge’s attorney said he would cooperate in any renewed FBI probe, telling CNN: “If the FBI or any law enforcement agency requests Mr. Judge’s cooperation, he will answer any and all questions posed to him.”

It is hard to know whether that will result in anything, but keep in mind that Kavanaugh was asked multiple times at yesterday’s hearing whether he would support a reopened FBI background check, and he dodged, playing a clever verbal game in which he said he would support whatever the Judiciary Committee wanted to do, secure in the knowledge that Republicans would not allow such a reopened probe to happen.

Or so Kavanaugh thought, anyway. He wasn’t banking on today’s turn of events. A big takeaway from yesterday’s hearing was that Kavanaugh obviously does not want Judge — the one other person Ford says was in the room during the assault, a person who knows a great deal about Kavanaugh’s conduct in those days — to face serious questioning. Now he just might. Also remember that Judge’s college girlfriend has said she’s prepared to talk to the FBI as well, though it’s hard to know what that might produce.

Right now, there are four remaining senators who have not made their position on Kavanaugh public: Republicans Collins and Murkowski, and Democrats Manchin and Heidi Heitkamp of North Dakota (the latter two are up for reelection in states Trump won). Only two of them need to vote in the affirmative for Kavanaugh to get on to the court.

It’s perfectly plausible, of course, that the FBI could end up finding nothing conclusive — one big related question is how hard the FBI will end up looking, if the reopened background check goes forward — and this could end up making it easier for Kavanaugh to get 50 or 51 Republican votes, and possibly even a couple of red state Democrats as well.

That may be the calculation Flake and those joining him are making. They could be thinking that the investigation isn’t going to change anything, since Ford can’t prove her allegation, but it will increase the legitimacy of Kavanaugh’s appointment if the FBI investigation Democrats have been demanding is completed.

Of course, it’s also possible that the FBI investigation will yield new information that’s enough to convince two Republican senators to vote no. In that scenario, a big question will then be whether one red state Democrat will provide the yes vote that puts Kavanaugh on the court — which, if it happened, would unleash the fury of the Democratic base.

Or, alternatively, new information could conceivably get the White House to pull the plug on Kavanaugh. Importantly, more time before the final vote means that reporters will be doing more digging. A lot more.

Which means that while Kavanaugh’s confirmation might have seemed like a nearly sure thing a few hours ago, now it’s anybody’s guess.

Update: Senate GOP leaders have announced their support for the reopened FBI probe, and President Trump appears to be going along, claiming: “Whatever they think is necessary is okay.”

Read more:

Lindsey Graham leads the counter-resistance to save Kavanaugh

In the Kavanaugh hearing, Republican rage overrides the desire to seek the truth

The Kavanaugh-Ford hearing broke the committee

Did two women in an elevator just change everything?

Kavanaugh finally showed us who he really is. And he’s unfit for the court.