HORIST: Kavanaugh hearing turns Flake-y

Senator Jeff Flake often sees himself in the tradition of his late fellow Arizona Senator John McCain – a bit of a maverick.  Even as his Senate career is coming to a close, he is living up to that ambition.

Just as the Senate circus that is sometimes known as the Kavanaugh Supreme Court hearing was coming to a close with the anticipated supportive vote of the Judiciary Committee – albeit on partisan lines –  Flack makes himself the centerpiece legislator (again) – just as McCain did with his last-minute vote against the repeal and replacement of Obamacare.

Early in the morning, Flake had seemingly ended all suspense by declaring that he would vote in support of the confirmation of Kavanaugh.  That appeared to pave the way for a full-Senate confirmation vote early next week – with the odds in favor of confirmation.

Following a series of doomed-to-fail grandstanding motions by the unhappy Democrat minority members of the Committee, and an abusively long, pompous and self-praising speech by New Jersey Senator Cory Booker, everything seemed to be in order for the scheduled afternoon vote – although Booker concluded his remarks with a pronouncement that he would protest by not participating any further in the proceedings.  He then walked out of the room with cameras clicking like crickets on a summer day. 

In an earlier hearing, he grandstanded by declaring he would release confidential documents and would risk expulsion from the Senate for doing so.  Turned out that the documents  were not classified and there was no chance that he would have been expelled.  Regardless, he declared it his “Spartacus Moment” – a reference to the Thracian gladiator who led a slave uprising against Rome.  In reality, it was a bit more like one of those hyperbolic self-praising “Trump Moments.”

Literally within minutes of the roll call, Flake was seen caucusing with the Democrats.  An air of uncertainty and apprehension took the session beyond the scheduled time for the vote – perturbing Committee Chairman Chuck Grassley, a man of punctilious punctuality.

When the session was reconvened, Flack announced a condition on his vote to advance the Kavanaugh confirmation to the full Senate.  The final vote, he declared, would only come after a brief FBI investigation.  He basically aligned himself with the Democrats, who seemed to believe they had a lockdown deal through Flake.  Facing the almost certainty of a Kavanaugh confirmation, the Democrats had been pushing hard for a delay of any kind – another fishing expedition and more time to rake the muck at the bottom of the swamp – and now they got it.

With Flake’s vote secured, the roll call commenced, and Kavanaugh’s confirmation was advanced to the full Senate by an 11 to 10 partisan vote.  It appeared that the Democrats – and even Flake – had anticipated further action – perhaps an agreement, a resolution and more specifics on the deal.

That never happened because crafty Grassley invoked the arcane “two-hour rule” and summarily ended the session. Expressions of confusion spread across the Committee members faces – especially the Democrats – like a total eclipse of the sun.

To understand what had happened, you need to understand the operation of the Senate – which even few members do.

First, the GOP needs Flake’s vote two or three more times – maybe more.  In advance of the up-or-down vote, there will be a couple of procedural votes.  Someone like Flake could vote in favor of the votes necessary to advance the confirmation and still vote against confirmation in the final round.  In fact, that is exactly what Flake threatened.

It also needs to be understood that the deal to delay the vote and call in the FBI is beyond the authority of the deal makers – or even the Judiciary Committee.  Flake can use his desperately need vote as leverage to enforce the deal – assuming that there is a least one other Republican Senator also willing to withhold a vote.

The only person who can set the time for a vote is Majority Leader Mitch McConnell, and he was not in on the deal.  McConnell agreed to hold off the final vote, but said he would proceed with the preliminary procedural votes.  Trump, in turn, ordered the FBI to extend its background check with the provisos that it be accomplished in “less than one week” and deal only with credible issues.

As could be expected, the delay set off another round of cacophonous complaints from the Democrats.  In addition to Kavanaugh’s judicial philosophy and the accusations of sexual misconduct, Democrats and the media are peddling his alleged teenage drinking habits and his demeanor during the hearings as further cause for disqualification.

The Democrats demands for an FBI hearing could be a case of the dog chasing the car.  What happens if he catches it?

Their pleas for an FBI investigation became louder and more frequent as the likelihood of such an investigation lessened.  It was a good political strategy.  Now that they got the FBI involved, Democrats have to face the facts of such a background check.  It will not be a real investigation of the kind the public believes because the alleged crime is not a federal crime.  There will be nothing to turn over to the Justice Department for indictment.

They are going out and asking the same questions of the same people that the Committee investigators have already interviewed.  Since all those involved have submitted statements that are covered by perjury, it is unlikely any will change.

The FBI will then summarize the statements and send them along to the President, who will pass them on to the Judiciary Committee.  All that will be done in confidence.  There will be no published report, although you can bet that someone on the Democrat side of the Judiciary Committee will selectively leak information useful to the Kavanagh opposition.

If that is how it all unfolds, the Democrats will have lost their public relations talking points, and the Republicans will proceed with the vote without the appearance of rush-to-judgment.

There is also another apparently unanticipated risk.  The FBI can do what those male Republican senators could not.  They can inquire into the background of the accuser.  They can check out her underage drinking habits.  Has she made similar accusations on other occasions?  Did she have any record of emotional problems?  Was she promiscuous? If such inquiry seems inappropriate in the #MeToo age, we need to understand that those are the same issues the FBI will be checking out regarding Kavanaugh.

We are talking politics at the highest level, which means that anything could happen in the coming week.

Larry Horist is a conservative activist with an extensive background in economics, public policy and political issues. Clients of his consulting firm have included such conservative icons as Steve Forbes and Milton Friedman, and he has served as a consultant to the White House under Presidents Nixon and Reagan. He has testified as an expert witness before numerous legislative bodies, including the U. S. Congress and lectured at Harvard University, Northwestern University, Florida Atlantic University, Knox College and Hope College. An award-winning debater, his insightful and sometimes controversial commentaries appear frequently on the editorial pages of newspapers across the nation. He can be reached at lph@thomasandjoyce.com.