UPDATE: NBC News has reported that President Donald Trump has asked the FBI to conduct the supplemental background investigation requested by the Senate Judiciary Committee. Trump indicated that the investigation should be “limited in scope and completed in less than one week.” 

Less than 18 hours after a hearing on sexual-assault allegations that alternated between emotional and explosive, a deeply divided Senate Judiciary Committee voted to approve the nomination of Judge Brett Kavanaugh to serve on the Supreme Court. At first, it appeared that there would be relatively little suspense in the vote, because Sen. Jeff Flake, R-Ariz., announced shortly before the hearing began that he would vote to confirm Kavanaugh. But there was still plenty of drama and emotion in today’s meeting. From the outset, senators on both sides used it as a forum to make what amounted to closing arguments for and against Kavanaugh’s nomination. And in the end, the senators’ votes mirrored their party affiliations, with all 11 Republicans on the committee voting for Kavanaugh and all 10 Democrats voting against him. But the vote was delayed while Flake huddled with his Democratic colleagues, most notably Sen. Chris Coons of Delaware. And when Flake – who had not previously spoken today – rejoined his colleagues, he endorsed a delay to allow an FBI investigation “limited in time and scope into the current accusations that are there.”

Today’s sometimes dramatic events followed an intense day of testimony yesterday on Capitol Hill by both Kavanaugh and Blasey Ford, who has accused Kavanaugh of sexually assaulting her at a party when both were in high school. Blasey Ford appeared fragile but composed, telling senators that she was absolutely certain that Kavanaugh was her assailant, while Kavanaugh insisted forcefully that he was completely innocent.

With the only witnesses at yesterday’s hearing offering two irreconcilable accounts, there was relatively little discussion of the alleged assault itself. Instead, Democrats on the committee repeatedly called for an FBI investigation into Blasey Ford’s allegations, while Republicans and Kavanaugh himself decried the accusations as part of an orchestrated partisan effort to derail his nomination – including, as Kavanaugh suggested angrily, as “revenge” for his role as a deputy to Ken Starr in Starr’s investigation of Bill and Hillary Clinton during the 1990s.

Today’s committee meeting was contentious, with statements by senators on both sides reflecting the vast chasm that has developed between Republicans and most Democrats on the Kavanaugh nomination. The meeting began with Sen. Richard Blumenthal, Democrat of Connecticut, asking the committee to force Mark Judge, who Ford has said was in the room when Kavanaugh attacked her, to testify. Judge, Blumenthal argued, had never been interviewed by the FBI nor questioned by members of the committee. Sen. Chuck Grassley, Republican of Iowa and the chair of the committee, countered that Judge had submitted a new letter, again denying any knowledge of the events described by Blasey Ford, and he called for a vote on Blumenthal’s motion even as Blumenthal tried to protest. The motion failed, and several Democratic senators walked out to speak to reporters in what looked like an impromptu demonstration. One of those senators, Kamala Harris, D-Calif., called the hearing a “sham.”

The Republican senators who spoke today were sharply critical of what they portrayed as a partisan effort to defeat Kavanaugh’s nomination. Sen. Orrin Hatch of Utah declared that it was time to “end the circus” and “show some dignity around here,” and he described himself as “tired of all the games and gamesmanship” surrounding nomination. Sen. John Cornyn of Texas suggested that there had been a “calculated effort to manipulate this process in a way that is blatantly unfair” to both Blasey Ford and Kavanaugh; Democrats, he continued, had displayed “cruelty, recklessness, indecency for the people we should be treating with respect and dignity.” And Sen. Lindsay Graham of South Carolina pronounced that we are “in the twilight zone.” “This has never been about the truth,” Graham averred. “This is about delay and destruction. If we reward this, it is the end of good people wanting to be judges.”

Senate Democrats renewed their calls for an FBI investigation into the allegations by Blasey Ford and other accusers. Sen. Amy Klobuchar of Minnesota, who seemed relatively calm yesterday, spoke passionately, with her voice sometimes wavering. “I don’t want to hear about ‘respecting’ Dr. Ford,” Klobuchar told her colleagues, when they aren’t respecting her by giving her an FBI investigation. Sen. Sheldon Whitehouse of Rhode Island focused on an entry from Kavanaugh’s 1982 calendar that, Whitehouse posited, could have been the party at which Blasey Ford alleges the assault occurred. The FBI could shed more light on this, Whitehouse argued. But in any event, Whitehouse warned, the facts will come out over time.” “The sand is running through Kavanaugh’s hourglass,” he concluded.

As the meeting seemed to be drawing to a close, Blumenthal again made what he described as a “last appeal” for delay, seemingly to no avail. Grassley had, at the outset of the meeting, declared that the committee would vote at 1:30 p.m., but that time came and went without the committee reconvening.

Shortly before 2 p.m., Flake – who had been confronted in the elevator by two women who described themselves as survivors of sexual assault – returned to the dais, and Grassley called on him to speak. Flake explained that he had spoken with his Democratic colleagues and had concluded that it would be “proper to delay the floor vote for up to but not more than one week” so that the FBI can conduct an investigation “limited in time and scope into the current accusations that are there,” although it is not entirely clear whether Flake was referring only to the allegations that have already been leveled by Blasey Ford or instead also meant to include the other allegations that have been made in the past week.  “We ought to do what we can to do all due diligence with a nomination this important,” Flake reasoned. Therefore, Flake said, he would vote to advance Kavanaugh’s nomination to the Senate floor with the understanding that the full Senate vote would be delayed for an FBI investigation. The senators on the committee then voted on the nomination, dividing 11 to 10 along party lines.

Flake’s push for an FBI investigation would not, standing alone, guarantee either that the vote will be delayed or that an FBI investigation will follow, both because Senate Majority Leader Mitch McConnell of Kentucky has the power to determine when and whether the nomination moves to the floor and because a call for an FBI investigation would need to come from the White House, rather than the Senate. But Flake’s request seemed to be gaining momentum, as Sen. Lisa Murkowski, R-Alaska, who is regarded as a key vote in the confirmation process, this afternoon indicated that she agrees with Flake’s call for an investigation, saying that she thinks “it is important that we do our due diligence.” And shortly before 4 p.m. today, the Senate Judiciary Committee released a statement announcing that it “will request that the administration instruct the FBI to conduct a supplemental FBI background investigation with respect to the nomination of Judge Brett Kavanaugh to be an Associate Justice on the Supreme Court.” That investigation, the committee wrote, “would be limited to current credible allegations against the nominee and must be completed no later than one week from today.” The committee’s announcement puts the ball squarely in the White House’s court, but the Trump’s administration’s options may be limited: Without an investigation, the administration might not have the votes to confirm Kavanaugh.

This post was first published at Howe on the Court.

Posted in Nomination of Brett Kavanaugh to the Supreme Court, Featured

Recommended Citation: Amy Howe, Kavanaugh nomination voted out of committee, but FBI investigation to follow (UPDATED), SCOTUSblog (Sep. 28, 2018, 4:13 PM), http://www.scotusblog.com/2018/09/kavanaugh-nomination-voted-out-of-committee-but-flake-endorses-fbi-investigation/