Law & the Courts

Jeff Flake’s Terrible Idea

Arizona senator Jeff Flake listens as members of the Senate Judiciary Committee meet to vote on the nomination of Brett Kavanaugh to the Supreme Court, September 28, 2018. (Reuters/Jim Bourg)

Democrats want further delay in the Kavanaugh confirmation vote, and Friday afternoon Arizona senator Jeff Flake gave it to them. He insisted that the FBI take another week to re-open the background investigation into Brett Kavanaugh and the allegations against him. “I just wanted,” Flake explained, “to get some Democrats to agree and willing to come out and publicly say, ‘We would accept this’ and we would say that the process is fair at least, even if they’re not going to vote for it.”

Good luck. There is no chance whatsoever that this process will satisfy the Democrats, or the press, or anyone else who has already decided that Judge Kavanaugh must be destroyed. The best argument we have heard in favor of an FBI investigation is that it will help to neutralize the attacks against Kavanaugh, and thereby legitimize his lifetime tenure on the Court. But the Democrats in the Senate showed their cards long, long ago. Almost the entire caucus came out against him within hours of his nomination, and continues to oppose him now. Summing up the position neatly, Senator Chris Murphy wrote Friday that “of course there should be an FBI investigation,” before adding that “whatever they find doesn’t change the fact that Kavanaugh, especially after his performance yesterday, is the most dangerous Supreme Court pick of our lifetime.” Glad to see you’re keeping an open mind, Senator.

Whether Senator Flake had his change of heart because he was detained briefly in an elevator by activists who harangued him only he will ever know. Regardless, he should understand that the protester who shouted at him is firmly in the Murphy school of thought. “I feel relieved that @JeffFlake seems to have heard my and @AnaMariaArchil2’s voices in the Senate elevator today,” she wrote on Twitter. “We absolutely need an FBI investigation and for him and all Senators to vote NO. #StopKavanaugh.”

She is right, of course. This is a delaying tactic. It is a fishing expedition. It is, in effect, the extension of an assiduous and cynical campaign of character assassination. What, one wonders, does Senator Flake think that Democrats are going to do if, as will almost certainly be the case, the FBI concludes that Dr. Ford’s story still has no corroboration? Does he expect Kamala Harris and Cory Booker to say, “Well, we are satisfied, and we are voting for him?” Does he expect Dianne Feinstein to pen a paean to the majesty of the presumption of innocence?

As Judge Kavanaugh noted during his testimony — and as Joe Biden explained back in 1991 — calls for the FBI to do the work of the Senate are invariably a red herring. The FBI does not come to conclusions, and it does not investigate ancient state-level allegations that do not fall under the local statute of limitations. Lawyers for Christine Blasey Ford, meanwhile, have already begun to dissemble, delay, and defer. A week isn’t long enough, they say. The remit isn’t broad enough, they say. Their client objects, they say. And so they might, for it will surely be advantageous to shift from arguing “nobody innocent can fear investigation” to “being under investigation disqualifies you from elevation to the Supreme Court.”

Senator Flake should have known better than to have yielded this intermission. Surely, a week from now, the same Democrats he hoped to appeal to will be arguing for an even longer investigation.


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