Supreme Court Nominee Hearings: Where To From Here?

I watched the testimony of Dr. Christine Blasey Ford and Supreme Court nominee Judge Brett Kavanaugh on Thursday September 27, 2018.  Dr. Ford testified first at the insistence of the Republican congress even though during negotiations with the Republican-led Judiciary Committee she had asked that judge Kavanaugh testify first.  Obviously, her request was denied.

I felt as if I were glued to my television from the very beginning of Dr. Ford’s testimony.  Unfortunately, I had made a doctor’s appointment for 1:15 p.m. that day and had to leave for my appointment shortly after Dr. Ford finished testifying.  When I arrived at my doctor’s office, they had the television channel in the waiting room set on the testimony.  As I waited to see the doctor, Judge Brett Kavanaugh arrived at the hearing room and was seated for his testimony.  Just after he was seated, I was called in to see my doctor.

Fortunately for me, when I returned home from my appointment, Judge Kavanaugh was just concluding his opening statement.  I found out later on that during that statement, he had viciously attacked the Democratic Party and said that the Democratic members on the Judiciary Committee had gone from an advise and consent approach, which was their duty, to a seek and destroy approach in a well planned political attack to prevent him from being confirmed as a Supreme Court Justice.

He said that the Democrats on this committee attacked him out of jealousy and anger due to Mr. Trump’s 2016 election victory and in an attempt to assist in orchestrating ‘the revenge of the Clintons’.  He was extremely rude to all of the Democratic senators and regularly pushed back on their questions to him including turning back the same questions that they asked him back on them.

His attack on the Democrats was extremely abrasive, completely partisan, and unprecedented for someone who was being considered for a seat on the highest court in the land.  This was especially appalling and unexpected since Judge Kavanaugh is already a seated District of Columbia appellate court judge and has been since 2006 when he was appointed by President George W. Bush.

The other thing that made the opposing testimonies of these two individuals so bizarre was that the Republicans on the Judiciary Committee had hired Rachel Mitchell, a sex crimes prosecutor from Arizona who was already on the government payroll, to question Dr. Ford and Judge Kavanaugh instead of having the Republican senators on the committee to do their jobs and question them.

And to make things even more bizarre, after Ms. Mitchell had questioned Dr. Ford (in essence, cross examined her) – and a few questions into her questioning Judge Kavanaugh – Republicans took the gavel back from her (in essence, fired her) and Republican senators asked their own questions from that point until the completion of Judge Kavanaugh’s testimony.  When Senator Lindsey Graham’s turn came to ask Judge Kavanaugh questions he did so but during that questioning, he also addressed the Democrats on the committee.  When he did, he was just as abrasive, rude, accusatory and combative as Judge Kavanaugh had thus far been during his responses to questions from the Democratic senators on the committee.

Prior to Senator Graham’s unseemly behavior – after Dr. Ford had testified and proven she was an extremely credible witness and before Judge Kavanaugh began his testimony – Democrats had regularly asked the Republican majority to allow the FBI to reopen their investigation of Judge Kavanaugh.  Republicans had steadfastly refused their requests.  But Democrats persisted in their request even after Judge Kavanaugh began his testimony and addressed this same request to him.

During the entire time that he testified, almost every time that a Democrat on the committee had the opportunity to question him, they asked him if he would agree to allow the FBI to conduct an investigation to help him to clear his good name.  Each time, Judge Kavanaugh – even when strongly pressed to say what ‘he’ would like to see happen with regard to an investigation, demurred and said that he would do whatever the committee wanted to do knowing that they were against such an investigation.

Just when it appeared that Judge Kavanaugh’s confirmation to become a Supreme Court Justice was all but a sealed deal and the Judiciary Committee vote was about to be called to send his name to the senate floor for a full vote, a virtual miracle in democracy occurred.  Arizona senator Jeff Flake got up from his seat and as he walked past Democratic senator Chris Coons and Democratic senator Amy Klobuchar, he motioned for them to follow him into a private side room of the hearing room.  The scheduled time that Senator Chuck Grassley had set for the vote came and passed as a number of senators progressed in and out of the side room where Senator Flake was.

When Senator Flake finally emerged from the side room, as he walked past Senator Grassley on the way to his seat, he whispered something to him.  He must have asked to speak before the vote because Senator Grassley immediately granted him permission to speak before he called for the vote.  That is when the virtual miracle actually occurred.  Senator Flake had come to a gentleman’s agreement with the Democrats during their meeting in the side room and asked that the proceedings to confirm Judge Kavanaugh be delayed for no more than one (1) week so that an investigation by the FBI could be conducted into the allegations against Judge Kavanaugh.

This was a shocking and historic event.  Senator Flake said that he would vote to move Judge Kavanaugh’s nomination out of committee and to the senate floor for a full vote by the senate but he would vote ‘no’ during the vote by the full senate to confirm Judge Kavanaugh if an investigation by the FBI of the allegations against him was not conducted first.  Senators Susan Collins and Lisa Murkowski quickly sided with Senator Flake and called for an investigation.  Under these circumstances, since Senate Majority Leader Mitch McConnell no longer had the votes to confirm Judge Kavanaugh, he was forced to capitulate to Senator Flake’s request for a delay.  Under these same circumstances, Mr. Trump also agreed to a delay and to reopen the investigation of Judge Kavanaugh.

Although I have more often than not viewed Senator Flake as weak on principles because of his affinity to regularly play politics and to kowtow to his party, this instance was not among those ‘more often’ times.  As a fellow senator from Arizona and an admirer of the late senator John McCain, it literally seems that Senator Flake invoked the name of the late Senator McCain and determined that regardless of the political costs to him, he was going to do what he felt was the right thing to do for America.  On the other end of this spectrum, unfortunately, is the late Senator McCain’s good friend Senator Lindsey Graham who has done a complete 180 since Senator McCain’s passing.  He has not only become a Mr. Donald Trump disciple but his complete toady and is among the biggest hypocrites in congress.

But lest I stray too far from the virtual miracle that occurred, I will refocus on Senator Jeff Flake and the fact that he instigated it.  He deserves all the credit in the world for getting the senate back on track.  He was the catalyst in getting the senate back, if only for that brief period of time, to making Judge Kavanaugh’s nomination hearings about truth and justice rather than about power.  Hopefully, the rest of the senators will benefit from Senator Flakes profile in courage and work harder to return the senate to a collegiate body whose members respect one another, treats each other with dignity and respect, and works hard to always place country above party and personal ambitions.

The bottom line is that there is, even at the writing of this article, an ongoing FBI investigation of Judge Brett Kavanaugh.  The important thing to all Americans should be that the investigation is being conducted and not whether or not the information that it yields will prove him innocent or guilty: let the cards fall where they may.  Thank you Senator Flake for stepping forward and doing your very best to pull a polarized America back together again and help a dysfunctional senate to regain its footing and eventually, hopefully, the respect of the American people.

UPDATE: Just before posting this article I read an article published by NBC News that said that the White house was limiting the scope of the investigation.  It is speculated by some that this will hamper the ability of the FBI to get all of the facts and limit their ability to thoroughly investigate the allegations that have been leveled against Judge Brett Kavanaugh.  According to this NBC News article, Senator Jeff Flake said that his understanding was that the FBI would determine the scope of the investigation.

It seems that it is business as usual at the White House.  Let’s hope that if this is some sort of an attempt by Mr. Trump to sabotage the investigation and render it in any way unfair that Senator Flake will perceive this and vote no on confirming Judge Kavanaugh.  And let’s also hope that Senator Susan Collins and Senator Lisa Murkowski will once again join him by adding their ‘no’ vote.

Eulus Dennis – author, Operation Rubik’s Cube and Living Between The Line