Retiring Senator Jeff Flake threw the confirmation of Supreme Court nominee Brett Kavanaugh into uncertainty on Friday.
One day after listening to wrenching testimony from Christine Blasey Ford, who has accused Kavanaugh of sexually assaulting her in high school, and the fiery denials from Kavanaugh, Flake announced that he would vote to advance Kavanaugh's nomination from the Senate Judiciary Committee to the Senate floor with a favorable recommendation.
Flake said in a statement that "our system of justice affords a presumption of innocence to the accused, absent corroborating evidence." So on Kavanaugh, Flake stated unequivocally, he would vote to confirm.
Then, Flake was confronted in a congressional elevator by two women who urged him not to vote for Kavanaugh.
“I was sexually assaulted and nobody believed me,” 23-year-old Maria Gallagher told him. “I didn’t tell anyone, and you’re telling all women that they don’t matter.”
Tearfully, she told Flake, who stood frozen with his eyes downcast, to look at her. "You're telling me that my assault doesn't matter," she said.
Flanked by aides, the senator barely spoke. "Thank you," Flake muttered.
When pressed by a reporter about the American Bar Association's call for an FBI investigation, Flake said, "I need to go to the hearing. I just issued a statement. I’ll be saying more, as well.”
After huddling with other senators, moments before the committee members cast their votes, Flake called for a week-long FBI investigation into the allegations before a confirmation vote by the full Senate. Kavanaugh's nomination was approved on an 11-10 vote.
Finally, following a meeting with Majority Leader Mitch McConnell, the Senate Republicans decided to ask the White House to direct the FBI to do a background check into Kavanaugh, stipulating that the inquiry was not to last more than a week. President Trump agreed, opening a "supplemental investigation" into Kavanaugh.
Flake, an outgoing moderate Republican and prominent Trump critic, singlehandedly kicked off this process despite a miserable track record when it comes to blocking Trump's agenda or checking the president's worst excesses.
So what is Flake doing? Here are a few theories.
He is giving moderate Republicans like him cover to approve Kavanaugh during the final confirmation vote.
Like his fellow moderate Republicans Susan Collins of Maine and Lisa Murkowski of Alaska, Flake has huge power as a swing vote. In fact, more than a single Republican no vote on Kavanaugh in the Senate could doom his ascent to the Supreme Court – Republicans can vote to confirm Kavanaugh without any Democratic votes, but not if Flake and one other Republican vote against Kavanaugh.
An FBI investigation into the allegations – even a cursory one – could convince Murkowski, Collins, and maybe even one or two red-state Democrats to support Kavanaugh. If voters are reassured by an FBI examination of Kavanaugh in light of the multiple sexual assault accusations against him, these middle-of-the-road politicians have political cover.
While securing the promise of an investigation — however limited — from McConnell and the White House, Flake avoided getting steamrolled like he has in the past.
Last December, Flake was left empty-handed after he pledged to vote for Trump's tax reform bill in exchange for the "firm commitment" of Senate Republicans and the White House to negotiate a solution to the crisis created when the Trump administration rescinded DACA.
In that case, a handshake-style agreement with the Republican leadership turned out to mean nothing. But in the case of Kavanaugh, until Flake, Collins, and Murkowski cast their votes, they still have a lot of sway. Thus, the FBI investigation.
He is performing for the cameras.
Flake makes headlines for his artful speeches criticizing Trumpism. His tweets often call out other Republicans, from Roy Moore to Congressman Paul Gosar, with a flair that makes for good copy: "This is why we can't have nice things," Flake tweeted after Gosar called for Dreamers to be arrested at the State of the Union.
So it makes sense that when faced with a dramatic decision in the Judiciary Committee, with the whole nation watching, Flake spied another opportunity to seize the moment.
What is ironic is that when Ford previously asked for an FBI investigation of her claims before testifying in front of the committee, Flake hesitated.
"When Dr. Ford came forward, I said that her voice should be heard and asked the Judiciary Committee to delay its vote on Judge Kavanaugh. It did so," Flake tweeted on September 18. "I now implore Dr. Ford to accept the invitation for Monday, in a public or private setting. The committee should hear her voice."
Flake often seems to wrestle with his conscience in a drawn-out or exceedingly public way. His reversal on an FBI investigation into Kavanaugh fits the pattern, and ultimately this might be one more stunt.
He wants to run for president.
He's not running for re-election, so in January, Flake could retire to any number of activities, including lobbying, writing more books, dispensing political commentary on a cable network, or teaching at Arizona State University.
But he also could mount an independent run for president or challenge President Trump for the Republican nomination in 2020.
Cementing a conservative majority on the Supreme Court for decades to come might be one of the Trump administration's most lasting accomplishments. And how Flake is remembered during this moment could affect how his Senate career is remembered, not to mention his future ambitions – whether he wants the presidency, or just a cushy job at the Sandra Day O'Connor College of Law.
It's Flake being Flake.
Calling for some vague action – in this case, an FBI investigation that may yield no more information than what the nation already knows – is vintage Flake.
Flake has denounced and tut-tutted Trump while lamenting the ugliness of politics in 2018 on so many occasions that it's almost impossible to keep track. However, he almost never swerves when conservative policy goals are at stake. It's a character trait that angers liberals to no end, since one might expect him to be on their team based on his words.
As many pundits have noted, Flake has an inner need to acknowledge something's wrong, but to not do anything about it.
To the teeth-grinding frustration of his critics, Flake seems to forget that he is one of a handful of tremendously powerful people who can actually affect the course of history.
In Flake's Barry Goldwater-esque manifesto published last year, Conscience of a Conservative, he wrote of the responsibility of Congress when faced with "an erratic executive branch."
"Too often, we observe the unfolding drama along with the rest of the country, passively, all but saying, 'Someone should do something!' without seeming to realize that that someone is us," Flake wrote.
Indeed, Flake is someone with the power to do something. He could have voted no on Friday morning. He could still vote no in the final confirmation vote, which could torpedo the Supreme Court nominee. But at least right now, he simply doesn't want to.
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