Flake's vote on Kavanaugh embodies Arizona's influence on the highest court

Sen. Jeff Flake will be the deciding vote on the confirmation of Supreme Court nominee Brett Kavanaugh

Arizona has long played a key role in the make-up of the Supreme Court, and last week’s contentious confirmation hearings for Supreme Court Nominee Brett Kavanaugh were no different. 

Following extensions, deadlines and a slew of allegations, the Senate Judiciary Committee voted last Friday to send the nominee forward for a full Senate vote.

Now all eyes are on Arizona Sen. Jeff Flake who voted yes initially, with a caveat — that the FBI investigate allegations brought forward by Christine Blasey Ford — before he would vote yes on the floor.

Blasey Ford testified before the committee that the current Federal Appeals Judge drunkenly assaulted her at a party when they were both in high school, over 30 years ago. 

The brash move Flake made in-line with the Democrats forced an FBI investigation, angering the Republican establishment and garnering the support of a few moderate Republicans.

Within hours however, the Republican majority announced it would push the vote back as far as a week, enough time for the FBI to complete a limited-scope investigation into the allegations. 

The move put Arizona at the forefront of yet another battle to shape the highest court in the land. 

Also from Arizona, Maricopa County Prosecutor and ASU aluma Rachel Mitchell asked questions on behalf of the Republicans on the Senate Judiciary Committee. This may have allowed them to avoid the negative optics that could be associated with an all-male cohort asking questions of the female alleged sexual assault victim.

Mitchell released a memo over the weekend to Republicans on the Judiciary Committee that said if she were a prosecutor for the case against Kavanaugh, she would not be able to bring charges based on the evidence presented before the committee — rekindling hope for the embattled nominee.

Arizona is no stranger to the history making changes involved in appointing justices to the Supreme Court, where nominations are for life and can completely reshape the judicial landscape of the country for generations to come. 

Jason Rose, a Phoenix-based republican analyst, said that this move reflects Arizona’s historic influence on the Supreme Court.

“Well it is certainly disproportionate this year but Arizona, when it comes to the Supreme Court, has been disproportionate for many years,” Rose said. “Consider that the first woman that served on the court was Sandra Day O’Connor from Arizona, and the Chief Justice for many years was William Rehnquist, who originally started as the town attorney in Paradise Valley, Arizona.” 

O’Connor's addition to the Supreme Court changed the face of the American legal system forever.

See more: ASU, Phoenix honor first female Supreme Court Justice

But Friday’s shock decision by Sen. Flake plays an equally decisive role, deciding the direction of the high court amid a nation absorbed by allegations of sexual misconduct by the nominee. 

ASU professor and constitutional law expert, Paul Bender, said that what Flake did was necessary to lend credibility to the nominee, whether he gets confirmed or not. 

“The FBI is going to investigate … like it usually investigates, and report back to the committee what it found out, what evidence it turned up,” Bender said. “They don’t evaluate the evidence they just gather it.

“I think it is really important that the committee decided to do that, to get that investigation,” Bender said. 

Bender said Kavanaugh's performance at his hearing tarnished the nomination and that the actions “exhibited a habit of mind and a thought process that really disqualifies him if he really meant all those things, from being a federal judge.” 

And if he is successful, Bender said, his tactics could be mirrored by future contenders. 

“If this guy gets confirmed because of that tirade, I think it might lead other people to be more political than they so far have been, and that would be terrible,” Bender said. “If everything about whether you confirm somebody is ‘what’s it going to do for your political party?’ then the whole idea of a lifetime independent judiciary is gone.”

Flake said in a 60 Minutes interview on Sunday that what he did was in the spur of the moment.

In the elevator just before the vote, a dramatic scene unfolded when a woman confronted the Senator, saying that he was sending a message to sexual assault survivors that they should not speak out. 

“I don't think anybody expected what happened on Friday to happen — and I can't say that I did either,” Flake said in the interview. “I just knew that we couldn't move forward, that I couldn't move forward without hitting the pause button because, what I was seeing, experiencing in an elevator and watching it in committee and just thinking, 'this is ripping our country apart.'”

As Arizona continues its legacy of influence on the high court, Rose said the move is reminiscent of Flake's late counterpart in the Senate sticking to his convictions despite the partisan rancor that it elicited.

"He sat through all of John McCain’s service — he watched his colleague vote Obamacare down, he watched two presidents eulogize him, and I don’t know how you can not be moved by that," Rose said. "I think he disappointed many, many Republicans by what he did today, but it’s hard to argue that wasn’t done in the spirit of his late great friend who he honored just last month."

Reach the reporter at isaac.windes@asu.edu or follow @isaacdwindes on Twitter.

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