Politics, Not Evidence, Will Determine Kavanaugh Vote

(Bloomberg Opinion) -- Senator Jeff Flake of Arizona, the Republican swing vote on the Senate Judiciary Committee, announced Friday morning that he would support President Donald Trump’s Supreme Court nominee Brett Kavanaugh. But when the committee met, he made clear -- after consultations with Democrats on the panel -- that he wanted a one-week delay before the final floor vote to confirm Kavanaugh to allow the FBI to conduct a limited background check on the allegations of sexual assault against the nominee. 

So what happens next?

To be clear: Even if had Flake voted “no” in committee, Republicans could still have brought the nomination to the full Senate for a vote. There’s no requirement that nominations be approved in committee. As it happens, a rejection by a panel usually kills a nomination, but mainly because such action generally is a good indication the nomination doesn’t have the votes. That doesn’t apply in this case.

There was some chatter in the committee after Flake’s remarks that there’s no guarantee he will get the delay because the Senate floor schedule is up to Majority Leader Mitch McConnell. That’s not entirely true. If Flake and at least one other Republican insist on a one-week delay for an FBI investigation or else they’ll vote “no,” then McConnell wouldn’t have the votes. And Senator Lisa Murkowski of Alaska has announced she supports Flake on the delay, so it looks like McConnell will have no choice. It’s also possible that the chairman of the Judiciary Committee, Chuck Grassley of Iowa, might insist on it on behalf of Flake.

What may be relevant is that technically the filibuster for nominations still exists. The threshold for defeating the parliamentary blocking maneuver was dropped from 60 votes to a simple majority in 2013 for most nominations and in 2017 for Supreme Court picks. That means at least one procedural vote on “cloture” -- cutting off debate and moving to a final vote on confirmation -- will be required to move Kavanaugh’s nomination forward. Because of that, Flake and Republican allies don’t have to threaten to vote against the nominee. They just have to vote against cloture until they are satisfied that there will be an investigation and that there’ll be a week’s delay. 

None of this is likely to change the eventual outcome. Four senators remain undecided -- Republicans Murkowski and Susan Collins of Maine, and Democrats Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota – and political incentives, not the investigation, are likely to guide their choices. Every other senator has announced they will vote along party lines in the chamber, which has 51 Republicans and 49 Democrats.

It’s worth noting that if Kavanaugh goes down there is still plenty of time for a replacement to be named and confirmed before the end of this Congress. There is no scenario in which Republicans wind up losing control over this Supreme Court seat. The open question is whether it’s Kavanaugh or some other very conservative Republican who winds up getting confirmed.

Eventually, the four undecided senators will have to choose, and it’s not impossible that a few extra days could matter. An FBI check could turn up something important. There are a lot of reporters swarming around the story; they might find out something that changes things. Mobilized constituent pressure could make more of a difference over a week. Each day after the Thursday hearing means more polls released giving some indication of how the public responded, and those could matter, too. And both sides get a while longer to plead their case publicly, which also might make some difference. So set the countdown clock back a little longer, put some FBI agents in the field, and prepare for at least another week of this mess. 

To contact the editor responsible for this story: Max Berley at mberley@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.

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