The Senate Judiciary Committee voted 11 to 10 along party lines on Friday to recommend that the entire Senate vote on Supreme Court nominee Brett Kavanaugh. But due to the request of Sen. Jeff Flake (R-Ariz.), the deciding vote, the committee will recommend that the vote on the floor of the Senate be postponed until the FBI can conduct a one-week investigation.
Just before the vote took place, Sen. Chris Coons (D-Del.) spoke to Flake privately for several minutes in an attempt to get him to reconsider his position on Kavanaugh. While Coons was ultimately unable to convince Flake to vote against sending Kavanaugh to the rest of the Senate, he did convince him to ask for the committee to request an FBI investigation into Kavanaugh for one week before that final vote would take place.
Sen. Lindsey Graham (R-S.C.) pointed out that regardless of the committee's recommendation, the final decision on whether or not to delay the floor vote and request an FBI investigation rested with Senate Majority Leader Mitch McConnell (R-Ky.) and Senate Minority Leader Chuck Schumer (D-N.Y.).
Committee Chairman Sen. Chuck Grassley (R-Iowa) assured Flake that he would make the recommendation on his behalf, but agreed with Graham that the ultimate decision did not legally rest with him.
Ultimately, of course, whatever the Senate requests, only the Department of Justice can order the FBI to investigate the allegations against Kavanaugh.
This stipulation was not included in the vote itself. Instead, it was a “gentlemen and women's agreement,” as Grassley described it in a hot mic moment after the hearing wrapped up.
Listen to this critical hot mic exchange between Grassley and Feinstein re what was agreed to. https://t.co/Ew7HjrAWc8— Josh Marshall (@Josh Marshall)1538157919.0
What are other senators saying?
Sen. Lisa Murkowski (R-Alaska), another potential Republican dissenter, has indicated her support for this short FBI investigation. As has Sen. Joe Manchin (D-W.V.), a Democrat running in a close race to keep his seat.
BREAKING: Sen. Murkowski, key Republican vote for Judge Kavanaugh's confirmation, tells @NBCNews that she supports Sen. Flake's call for a brief reopening of FBI background investigation on Kavanaugh before a full Senate vote - @LACaldwellDC
— NBC News (@NBCNews) September 28, 2018
In a news release on Friday, Manchin said:
I applaud Senator Jeff Flake’s decision to rise above the partisan circus on display during this entire process. It took courage to take a stand and call for a one-week FBI investigation to get to the bottom of the allegations against Judge Kavanaugh. This has been a partisan and divisive process. The American people have been pulled apart by this entire spectacle and we need to take time to address these claims independently, so that our country can have confidence in the outcome of this vote. It is what is right and fair for Dr. Ford, Judge Kavanaugh, and the American people.
Murkowski and Manchin, along with Sen. Susan Collins (R-Maine) and Sen. Heidi Heitkamp (D-N.D.) have not yet committed to voting either yes or no on Kavanaugh. Since Republicans currently have 49 senators committed to voting to confirm, and Vice President Mike Pence is permitted to cast a tie-breaking vote in his role as president of the Senate, only one of these four senators needs to vote yes in order for Kavanaugh to be confirmed.
Does Trump have the final decision?
Even if McConnell decided to approve delaying the vote for a week, the Senate does not have the authority to order an FBI investigation. Instead, he or another member of the Senate would have to request that the Justice Department authorize one.
The final decision on whether or not to conduct an investigation would then rest with either the Justice Department or with President Donald Trump.
For his part, Trump has indicated that he won't get in the way of the Senate on this matter, saying after being told of Flake's request “whatever they think is necessary is OK.”
"Whatever they think is necessary is OK," President Trump says of a potential delay to the Senate vote on Judge Kavanaugh's nomination to the US Supreme Court. pic.twitter.com/Qq8vfGaNwX
— NBC News (@NBCNews) September 28, 2018