Hana Callaghan is the director of Government Ethics at the Markkula Center for Applied Ethics. Views are her own
Early in the morning of September 28, Senator Jeff Flake released a statement saying he would vote for the confirmation of Supreme Court nominee Brett Kavanaugh. Later that, day a remarkable bipartisan moment occurred when Flake addressed the Senate Judiciary Committee in the minutes before the vote to advance Kavanaugh’s nomination to the Senate floor. He said, “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 do an investigation, limited in time and scope to the current allegations that are there, limited in time to no more than one week. And I will vote to advance the bill to the floor with that understanding.” With that proviso, Flake voted along party lines to move the nomination forward.
Although Senator Coons made a motion to make Senator Flake’s comments the official request of the Senate (seconded by Senator Feinstein) Committee Chair Grassley refused to allow a vote on that motion. He said, Flake’s request was merely a “gentleman’s and woman’s agreement.”
Delaying a final vote in the Senate pending an FBI investigation was the right thing to do. It was the right thing to do for Christine Blasey Ford, it was the right thing to do for Judge Kavanaugh, and it was the right thing to do for America—that is so long as this is a real attempt to get to the bottom of the allegations against Kavanaugh.
Senator Flake had the opportunity on more than one occasion to vote to request an FBI investigation and he declined to so. By letting the nomination out of committee he voted with nothing more than a hope and a prayer for further investigation and resolution of the sexual assault allegations. By letting go of jurisdiction over the matter, he punted to the full Senate.
Only after Flake was joined by Republican Senators Murkowski and Collins did majority leader Mitch McConnell agree to delay the vote on the floor and ask the president to direct the FBI to investigate. The president, in an unusual display of restraint and calm, agreed.
Here is the problem: The FBI only gathers facts. The FBI generally doesn’t draw conclusions or make recommendations. In this situation, who will review the facts gathered and determine the truth of the allegations? Ordinarily it would be the Judiciary Committee, but they have already moved the nomination out of committee. Will the president review the report and have the final say as to who sees it? Will the majority leader? Or, will the entire Senate have access to all of the facts before they vote?
Is this delay an exercise in smoke and mirrors, done simply so that senators can say they engaged in due diligence? Is this merely a tactic to gain back the trust of Republican women whose approval of the president and the Kavanaugh nomination dropped by 11 points in the last week? Was this an attention-grabbing grandstanding effort on Flake’s part to position himself for a presidential run in 2020? Or is this a good faith attempt to discover the truth?
To his credit, Flake has indicated that he might change his yea vote for Kavanaugh to nay depending on what the investigation reveals. Time will tell, but I would be more confident if he and the committee had retained jurisdiction until the matter had been settled. That would have been true courage.
However, all jaded cynicism aside, the fact that Ford’s sexual assault allegations are deemed credible enough to warrant further investigation, and the fact that a U.S. senator made this happen in defiance of his party, is indeed a good day for America.