US senator Jeff Flake secures 11th hour compromise on Brett Kavanaugh nomination

At stake in the fracas is the separation of powers that is the cornerstone of American government

US Senator Jeff Flake speaks with reporters on Capitol Hill on September 28, 2018 in Washington, DC. AFP
US Senator Jeff Flake speaks with reporters on Capitol Hill on September 28, 2018 in Washington, DC. AFP

After a week of extraordinary drama in American politics, the country is bracing for another round of partisan wrestling as the FBI investigates sexual misconduct allegations against Donald Trump’s nominee for the US Supreme Court.

An eleventh-hour compromise on Friday ensured Brett Kavanaugh’s nomination would survive as Republicans scrambled for the necessary votes, but means the divisive battle will continue for days to come.

It leaves the country’s fault lines exposed after explosive public hearings that risk damaging the perception of the highest court in the land, analysts say.

Judge Kavanaugh’s claim that he was the victim of attacks by losers in the 2016 election introduced a political note to a court that was supposed to be above such things, said Josh Blackman, a law professor at the South Texas College of Law in Houston.

“No matter what happens I think the court is the ultimate loser here. I think Judge Kavanaugh could have made the exact same points without making reference to the Clintons or Democrats, without going down that road,” he said.

“It's an optics thing. I don't think he'll vote any differently because of what happened in the past 10 days, but what will change is how people perceive it.”

The prize for President Trump and his supporters is elevating a conservative to fill a vacant seat on the Supreme Court, ensuring a rightward tilt to a body charged with deciding some of the country’s most contentious issues.

The controversies at the heart of the process erupted during a nine-hour hearing of the Senate judiciary committee on Thursday when accused and accuser delivered raw, powerful testimony.

Christine Blasey Ford made for a nervous, hesitant witness at first. But she presented an unwavering account of how a teenaged Judge Kavanaugh allegedly pinned her on a bed in 1982.

“I believed he was going to rape me,” she said. “It was hard for me to breathe, and I thought that Brett was going to accidentally kill me.”

She admitted to gaps in her memory and fended off accusations that she delayed coming forward to cause maximum disruption to Republican nomination process.

Asked whether she was certain of the identity of her attacker she answered: “100 per cent”.

Judge Kavanaugh later mirrored her language saying he was “100 per cent certain” the allegations were untrue. His testimony was marked by furious denials and claims that he was the victim of a vendetta.

“This whole two-week effort has been a calculated and orchestrated political hit, fuelled with apparent pent-up anger about President Trump and the 2016 election,” he said.

Their duelling claims divided senators along party lines when they reconvened a day later to decide whether to propel the nominee forward to the full vote in the Senate needed for Judge Kavanaugh to take up his seat.

The only consensus was on the ugly nature of the battle.

An “intergalactic freak show”, is how John Kennedy, a Republican senator, put it. Democrats talked of “a railroad job” and some walked out.

And then came the eleventh hour deal.


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"This country's being ripped apart here," said Jeff Flake, who is retiring as a Republican senator this year, giving enough political freedom to find a compromise. "We've got to make sure that we do due diligence."

Earlier that morning his office declared he would vote in favour of Judge Kavanaugh. But that was before two women, Ana Maria Archila and Maria Gallagher, cornered him in a lift. A video of their last-minute lobbying went viral.

“I have two children,” one shouted at Senator Flake as he looked awkwardly at the floor. “I cannot imagine that for the next 50 years they will have to have someone in the Supreme Court who has been accused of violating a young girl.”

Mr Flake’s compromise sets up a full vote of the Senate but only after a week’s pause while the FBI conducts a background investigation, a move authorised by President Trump later in the day. Agents will reopen their previous probes, revisiting previous witnesses and possibly speaking to new ones.

It leaves Republicans more confident that they can hold together their two-seat Senate majority, but Democrats say the time-limited compromise is far from the full investigation of all the allegations they wanted.

Anything short of full hearings of witnesses associated with Mrs Ford’s accusations represents a further blow to the rule of law, according to Martin Garbus, a constitutional lawyer and author of Courting Disaster, about the Supreme Court.

“The framers of the Constitution viewed the role of the Supreme Court as essential to our three equal branches of government and the system of checks and balances that is the bedrock of our free society,” he said.

Friday’s events “threaten to deconstruct the architecture of our democracy by allowing the executive and legislative branches of government to overpower the judicial branch, and eviscerate the rule of law.”

And it risks simply pausing the partisan fight for a few days.

While Republicans believe they can now marshal the votes they need to send Judge Kavanaugh to the Supreme Court, this bitter dispute is not over yet.

Updated: September 29, 2018 07:28 PM


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