Senate Judiciary Committee Advances Kavanaugh to the Floor, Flake Requests 1-Week FBI Investigation

By Fred Lucas Published on September 28, 2018

Supreme Court nominee Brett Kavanaugh now faces a full Senate vote, after the Senate Judiciary Committee voted 11-10 Friday along party lines in favor of advancing his nomination. This came a day after the committee’s high stakes hearing where the D.C. Circuit judge defended himself against late-breaking allegations of sexual misconduct.

Sen. Jeff Flake, R-Ariz., whose vote was in question, announced Friday morning that he would “vote to confirm” Kavanaugh. But just before the committee vote, Flake said his final vote on Kavanaugh was contingent on the FBI’s conducting an investigation of the “current allegations” against Kavanaugh that would be limited to no more than a week.

“I would only be comfortable moving on the floor [after] the FBI has done more investigation than it has done already,” Flake told his colleagues on the committee.

Flake continued:

Democrats, who I think have been justifiably uncomfortable moving ahead, could publicly, in an effort to bring this country together, say that we would feel better — I’m not expecting them to vote yes — but not to complain that an FBI investigation has not occurred.

This is what I’m trying to do. This country is being ripped apart here and we’ve got to make sure we can do our due diligence. But I think we can have a short pause and make sure the FBI can investigate. … It would be short and limited in scope to the allegations that have been made. I would encourage Democrats who we have talked to before to endorse that kind of thing and move on.

Sen. Chris Coons, D-Del., and other Democrats could be seen huddling with Flake before Judiciary Chairman Charles Grassley, R-Iowa, called the committee to order for the vote.

Grassley said he supported Flake’s position, but he didn’t control this.

The timing of a full Senate vote would be up to Senate Majority Leader Mitch McConnell, R-Ky., and Minority Leader Charles Schumer, D-N.Y.

President Donald Trump, while visiting at the White House with Chile President Sebastián Piñera, indicated to the press pool that he was open to a delay in the confirmation vote for his nominee.

“Well, I’m going to let the Senate handle that. They’ll make their decision,” Trump said. “They’ll do a good job. Very professional. I’m just hearing a little bit about it because I’ve been with the president of Chile, and we’re talking about some very important subjects. But I’m sure it will all be very good.”

“I guess the vote was a positive vote, but there seems to be a delay,” he said. “I’ll learn more about it as the day goes on.”

The president added that he thought Christine Blasey Ford’s testimony on Thursday was “compelling” and that Kavanaugh did well.

During earlier remarks at the Friday committee meeting, Grassley said that both Ford and Kavanaugh were given a chance to speak Thursday about the allegation.

“It’s a fundamental aspect of fairness and due process that the accuser have the burden of proving allegations,” Grassley said. “It’s true yesterday’s hearing was not a trial. But trials have rules based on commonsense notions of fairness and due process, not the other way around.”

The votes of two Republican senators, Lisa Murkowski of Alaska and Susan Collins of Maine, are still in question. A Democrat, Joe Manchin of West Virginia, has said he is undecided.

Ranking committee member Sen. Dianne Feinstein, D-Calif., blasted Kavanaugh Friday morning as “aggressive and belligerent” in his testimony Thursday responding to the allegations.

“This is not someone who reflected an impartial temperament or the fairness or evenhandedness one would see in a judge,” Feinstein said. “This is someone who was aggressive and belligerent. I have never seen someone who wants to be elevated to the highest court in our country behave in that manner. In stark contrast, the person who testified yesterday and demonstrated a balanced temperament was Dr. Ford.”

Kavanaugh has been on the U.S. Circuit Court of Appeals for the District of Columbia since 2006. Ford, 51, a California research psychologist and college professor, was questioned in a committee hearing Thursday about her allegation that Kavanaugh, 53, sexually assaulted her while drunk when both were teens in high school.

Sen. John Cornyn, R-Texas, said the process was unfair to both sides. “This entire process has been cruel and reckless and indecent for both Dr. Ford and Judge Kavanaugh,” Cornyn said.

The Texas Republican noted that Ford’s lawyers apparently didn’t inform her that the committee staff would interview her in California, which forced the political theater of Thursday’s public testimony. He also strongly criticized the public release of her confidential letter to Feinstein.

“What we hear from Dr. Ford is that she did not authorize the release of the letter of July 30 she sent to Sen. Feinstein, but it was leaked,” Cornyn said. “She said the only people who had possession of it were her lawyers, Sen. Feinstein and Rep. [Anna] Eshoo. You can reach your own conclusion, but the letter had to come from somewhere.”

“It sure looks to me, at least the circumstantial evidence would seem to point, to the desire to have exactly what we had yesterday and to contribute what has accurately been described as a circus atmosphere, cruel, reckless, no sense of decency,” Cornyn added.

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Besides Kavanaugh and classmate Mark Judge, Ford said Leland Ingham Keyser and Patrick J. Smyth were the others at the gathering of teens more than 35 years ago in Montgomery County, Maryland.

However, under penalty of felony, everyone named by Ford said in sworn statements to the committee that they did not remember the gathering. Keyser said she didn’t remember knowing Kavanaugh.

Kavanaugh said he doesn’t doubt Ford might have experienced a sexual assault, but stated firmly and repeatedly that it was not by him.

Sen. Patrick Leahy, D-Vt., warned Friday of grave circumstances for the Senate if Kavanaugh is confirmed:

This Judiciary Committee is no longer an independent branch of government, and we are supposed to be, the Senate is supposed to be, an independent equal branch of government. We are no longer that. We are an arm, and a very weak arm, of the Trump White House. Every semblance of independence has just disappeared. It is gone. I think that is something that historians will look at.

For clear reasons, Democrats have more strongly opposed Kavanaugh to replace retired Justice Anthony Kennedy than they opposed the confirmation of Justice Neil Gorsuch to replace the late Justice Antonin Scalia, Sen. Lindsey Graham, R-S.C., said.

“What’s the difference between Gorsuch and Kavanaugh? It’s the Kennedy seat. If you don’t get that, you’re not paying much attention,” Graham said, adding:

Gorsuch is an even swap for Scalia. This is high-stakes stuff. This is the seat where the guy in the middle is at risk. Kavanaugh clerked for Justice Kennedy. Would you [Democrats] have picked him? No. But you lost the election. That does have consequences. When I said it about [President Barack] Obama winning, I meant it.

Graham noted he voted for Obama’s two high court picks, Justices Sonia Sotomayor and Elena Kagan. He said very conservative Scalia and very liberal Justice Ruth Bader Ginsburg were almost unanimously confirmed.

“If you’re a gang rapist when you’re a sophomore and a junior in high school, you don’t let it go,” Graham said of one woman’s allegations against Kavanaugh.

“Every woman who actually knows Brett Kavanaugh has come forward to say he is not that kind of guy,” Graham said. “He has been at the highest level of public service under tremendous scrutiny, six FBI investigations, and we missed the sophomore-junior gang rapist. We didn’t miss it. It’s a bunch of garbage.”

Graham expressed sympathy for Ford, but said her allegation lacks evidence:

All I can say about Ms. Ford is that I feel sorry for her and I do believe something happened to her. And I don’t know when and where, but I don’t believe it was Brett Kavanaugh. As a prosecutor, you couldn’t get this out of the batter’s box because in America, before you can accuse somebody of a crime, you have to tell them when it happened and where it happened and you have to prove beyond a reasonable doubt it did happen.

Sen. Cory Booker, D-N.J., wrote in a 1992 piece for The Stanford Daily about his “groping” a female friend during his youth, adding that “the next week in school she told me that she was drunk that night and didn’t really know what she was doing.”

He gave a lengthy argument Friday against Kavanaugh. “She was a courageous, heroic woman telling her truth of sexual assault and sexual harassment,” Booker said of Ford. “This is what was done to me, she said. Many of my colleagues said they found Dr. Ford credible. But, to confirm Judge Kavanaugh, you would have to say not only that you don’t believe her, Dr. Ford, but that you are so certain this didn’t happen you are willing to force a vote now without any further investigation.”

The American Bar Association previously praised Kavanaugh’s character and supported his nomination, rating him as well qualified.

However, after the Thursday hearing, ABA President Robert Carlson wrote a letter to the committee asking that the Senate vote “only after an appropriate background check into the allegations made by Professor Ford and others is completed by the Federal Bureau of Investigation.”

“The basic principles that underscore the Senate’s constitutional duty of advice and consent on federal judicial nominees require nothing less than a careful examination of the accusations and facts by the FBI,” the Carlson letter continued.

Grassley noted that only Carlson wrote the letter, and he was not speaking as someone who consulted the ABA body.

Late last year, Sen. Ben Sasse, R-Neb., criticized the ABA, stating in a commentary: “The American Bar Association is not neutral. The ABA is a liberal organization that has publicly and consistently advocated for left-of-center positions for more than two decades now. “


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