In Defense Of Jeff Flake’s Gambit Of Trading A Kavanaugh Vote For An FBI Investigation

In Defense Of Jeff Flake’s Gambit Of Trading A Kavanaugh Vote For An FBI Investigation

Although infuriating to many conservatives, Jeff Flake might just have secured Supreme Court nominee Brett Kavanaugh's legitimacy.
David Marcus
By

In chess, a gambit is a move that sacrifices material or position in the hope of creating an advantage for oneself later in the game. Most of the time gambits are used by those playing white, who move first and thus control play.

Much to the annoyance of many of his Republican colleagues and conservatives in the media, Sen. Jeff Flake has just played a gambit. As he eyes his exit from the Senate, now just months away, he allowed objection to an FBI investigation to be flicked off the board, and gave opponents to Brett Kavanaugh’s Supreme Court nomination important extra time to attack. But what might he get in return?

The circumstances of Flake’s cave to Democrats on Friday were jarring. He had announced that morning that he would vote Kavanaugh out of committee, setting up a floor vote. Subsequently he was yelled at by activists in an elevator, held a side-room meeting with Democratic Sen. Chris Coons, and emerged with his new call for a probe.

Crucially, what we do not know is whether the Republicans at the time of Flake’s dramatics actually had the votes to pass Kavanaugh through the full Senate. If they didn’t have the votes to get to 50, then Flake saved the nomination. If they did have another vote for the nominee to get to 50, one could argue Flake needlessly conceded. But it is possible that even if the GOP had the votes to plow Kavanaugh through, Flake’s gambit could pay vital dividends later in a game that would be far from over.

The Legitimacy Of The Supreme Court

There is no arguing with those who believe Flake’s actions were a parting shot at a president and party he has come to abhor. The more generous way to look at it, which is often the best way, is to take Flake at his word. He argues that the country is so divided, so tribal that Kavanaugh’s confirmation without the investigation Democrats have demanded would be toxic to our society.

Indeed, a nation in which half the people have no faith in our highest court would be an absolute disaster. The power of the Supreme Court is in some ways a fiction. It has no direct power over the military, as the executive branch does. It has no power of the purse, as the legislature does. It is obeyed only to the extent that those two branches choose to obey it. Its only real power lies in the acceptance of its legitimacy.

Given the unusual and clearly politically motivated treatment of Merrick Garland’s nomination, many Democrats are convinced that, when they take back power in the executive and the legislative branches, the court should be packed with progressive votes. Republicans would scream bloody murder, but some Democrats would point at Garland and say “Don’t hate the player, hate the game.” A purely partisan pushing through of Kavanaugh despite allegations of sexual abuse, no matter how uncorroborated, would only make more Democrats accept such an alternative.

Even short of court packing, there seems little doubt that had Kavanaugh been confirmed with only Republican votes and no FBI investigation, Democrats would start at best a new investigation, at worst impeachment proceedings if they win the House in November. Flake is taking a lot of the wind out of those sails by setting up an investigation on reasonable, limited terms.

As for the Politics

It has always seemed clear that Sen. Dianne Feinstein’s anonymous allegation drop was designed more to win votes in November than to deny Kavanaugh a seat on the court. Watch any cable news commentary, and you will hear about suburban white women and how they feel about an attempted rapist being pushed though. In granting the investigation, Flake might be tamping those fires.

Yes, those who already abhor Kavanaugh will call the investigation a sham. Democrats have already begun poo-pooing it as insufficient. But there likely are voters, swayable voters, who will see the investigation as a good-faith effort and feel a significant drop in their outrage level. Even if only a small percentage of voters feel that the delay and investigation checks a box for them, it could be very significant.

The polling is mixed. One poll taken before the testimony showed GOP women abandoning the Kavanaugh nomination by 18 percent, others taken after show only a slight shift against him. Flake’s gambit may or may not sway women voters. But it is a layer of protection against the the claim that the GOP ignored the women and seated Kavanaugh without taking their objections into account.

Let’s be clear: not all women oppose Kavanaugh. Many support him. The mainstream media take suggesting otherwise is caught in a bubble. But it’s a bubble with a lot of power, that sets the narrative. It’s a bubble that at least has to cool its jets a little bit because the Republicans are now giving the FBI the chance to look into claims that Kavanaugh is an attempted rapist. If the FBI comes through with a clean bill of health for the nominee, such claims may rightfully be tossed in the dumpster loudly and publicly.

Of Course There’s a Risk

Gambits come with risk. The risks here are not insubstantial. Flake is giving Democrats what they most dearly desire: more time. In that time anything could come out — more accusers, perhaps a preschool teacher who says Kavanaugh didn’t nap well followed by a Voxsplainer about the relationship between poor napping habits in toddlers and rape attempts later in life. Who can say?

But if five days from now Ronan Farrow has no more dubiously sourced stories and Michael Avenatti can’t find another woman with weak-sauce claims, if the entire news media, the FBI, and the Democrats cannot come up with anything else, then won’t those Republicans and Democrats on the fence feel much more comfortable landing on confirmation? Won’t the claims that Republicans forced through an attempted rapist lose some steam?

The fact of the matter is that Kavanaugh should have been confirmed as a Supreme Court justice two weeks ago. He has been subjected to a smear campaign orchestrated by Democrats. That is a deep shame and I am sympathetic to the idea that such tactics should not be rewarded by delays and investigations. But this is 2018 and normalcy has gone the way of the dinosaur. It doesn’t exist anymore, but we love to talk about it.

Flake had nothing to lose by playing this last move, this call to due diligence done right. Perhaps he is naive, perhaps he is angry with a party he feels abandoned him, perhaps he just hates Donald Trump. I don’t know. But if in five days Kavanaugh is confirmed as an associate justice of the Supreme Court, Flake will have given his tenure a measure of legitimacy it would have lacked otherwise. That is no small thing.

David Marcus is the Federalist's New York Correspondent and the Artistic Director of Blue Box World, a Brooklyn based theater project. Follow him on Twitter, @BlueBoxDave.

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