After dodging Democratic requests for weeks, Republican leaders on Friday finally had no choice but to delay a confirmation vote on Brett Kavanaugh and call for an FBI investigation into allegations that he sexually assaulted a woman over three decades ago — and the consequences could be dire for the beleaguered Supreme Court nominee, according to experts.
Minutes before the Senate Judiciary Committee confirmed Kavanaugh’s nomination and sent it to the Senate floor for a full vote, Sen. Jeff Flake (R-Ariz.) took the podium and said he would not sustain his support for Kavanaugh unless his nomination was put on ice for a week so that the FBI could investigate claims he assaulted California professor Christine Blasey Ford at a drunken high school party in the early 1980s.
Flake has no authority to himself call an FBI investigation, but his demand carried such political clout that the GOP’s Senate leadership quickly caved to it, delaying a full vote on Kavanaugh’s nomination for up to a week and calling on the White House — the only entity which can do so — to request a federal probe.
Mark Zauderer, an appellate lawyer and Supreme Court confirmation expert, said Flake’s ultimatum was successful because Senate Majority Leader Mitch McConnell (R-Ky.) recognized he was running a high risk of not being able to confirm Kavanaugh if he would have ignored Flake’s request, quickly scheduled a floor vote and kept ignoring calls for FBI intervention.
“Flake does not control what happens in the Senate leadership, but if his conditions weren’t met, he could have presumably voted against the nominee and if that happened, more undecided senators like Murkowksi and Collins could have gone the same way,” Zauderer told the Daily News in a phone interview, referring to moderate Republican Sens. Lisa Murkowski of Alaska and Susan Collins of Maine.
“It would have been political suicide,” he added.
With a slim 51-49 majority, McConnell can only afford to lose one Republican vote without jeopardizing Kavanaugh’s nomination, granted that Democrats are able to hold ranks and uniformly vote against him.
Later Friday, President Trump took Republicans up on their begrudging request, ordering the FBI to “conduct a supplemental investigation” into the sexual assault claims against Kavanaugh.
Zauderer said the FBI will have to dig up some “very credible corroboration” in order for Republicans to be swayed.
However, contrasting the matter against Anita Hill’s FBI-reviewed harassment allegations against Justice Clarence Thomas, Zauderer said Kavanaugh’s nomination is more likely to be derailed.
“Today the sensitivity to allegations of the kind involved here is much greater than it was over 25 years ago,” Zauderer said. “And I think there’s a sharp contrast in the tone as it relates to the receptiveness to this type of accusation against a public official.”
Renato Mariotti, a former federal prosecutor in Illinois who worked closely with FBI agents, said the bureau will be able to conduct all the interviews and gather all the records Judiciary Committee Democrats were blocked from by Republicans, who refused to allow testimony from any other witnesses than Ford and Kavanaugh.
“What the FBI will do is to interview everyone involved, like Mark Judge for example,” Mariotti said, referencing Kavanaugh’s pal who was allegedly in the room when he is said to have attacked Ford. “They’re going to ask detailed questions and follow up on those and confront them with evidence. They might try to speak to other witnesses we haven’t considered who might be able to corroborate portions of the witness accounts.”
Mariotti also said the FBI will do a “much better” job than the Senate Judiciary Committee because the bureau is a non-partisan federal law enforcement agency.
“As we saw (Thursday), the committee process is not very productive when it comes to finding out what really happened in a scenario involving alleged sexual assault,” Mariotti said, referencing the hearing featuring testimony from both Ford and Kavanaugh. “FBI agents are neutral and are better at finding facts because they’re not trying to satisfy an agenda.”
Mariotti took heart in what he saw as the long-lasting consequences of Friday’s development.
“This will send a message to Dr. Ford and other sexual assault victims that when they come forward their claims will be fully investigated,” Mariotti said. “I think that’s a positive development for victims everywhere and the country in general.”