Week-long FBI investigation likely a Pyrrhic victory

Week-long FBI investigation likely a Pyrrhic victory
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Elevator thrashing or not, Senator Jeff Flake’s laudable, single-handed bending of history represents a victory of sorts for due process, the quest for truth, and the #MeToo movement. In an odd way, though, the thwarting of the Republican attempt to ram Judge Kavanaugh’s nomination through the Senate last week may ultimately take a steeper toll on progressive causes.

Presuming the FBI conducts a complete and credible investigation, Judge Kavanaugh’s appointment will, in all likelihood, rise or fall on the Bureau’s findings.  Whichever way the cookie crumbles, the outrage of liberals over the Republicans indifference to truth, sexual assault, and fair process will be muted a bit compared to the red-hot anger they would have carried into the midterm elections, just a little over a month away, without Flake’s last-minute heroics.


Less intense anger won’t, in light of today’s stark ideological dichotomy, change anyone’s vote. Instead, the name of the game with the midterm elections seems to be turnout. And if anything inspires turnout, it’s excitement – as in 2008 – or anger – as in 2016. Indeed, surveys have shown the truth in Republican pollster and strategist Glen Bolger’s remark that, “Angry voters turn out and vote their anger.”

Either way the FBI’s entry into the fray tilts, a revealing investigation would take a bit of the edge off with those deeply offended by Mitch McConnellAddison (Mitch) Mitchell McConnellBiden says he's open to altering, eliminating filibuster to advance voting rights Pelosi says GOP senators 'voted to aid and abet' voter suppression for blocking revised elections bill Manchin insists he hasn't threatened to leave Democrats MORE’s stormtrooper tactics. And either way it unfolds, the President’s base, taking Lindsey GrahamLindsey Olin GrahamThune endorses Herschel Walker in Georgia Senate race Pennsylvania Republican becomes latest COVID-19 breakthrough case in Congress McCain: Ivanka Trump, Jared Kushner had 'no goddamn business' attending father's funeral MORE’s cue, is further outraged by the week-long delay itself. All of which may, at the end of the day, augur for a net loss in the turnout of progressives.

Wait, you say, if the findings tend to corroborate Professor Blasey Ford’s account, then the tide shifts against Kavanaugh and he likely loses or is withdrawn. Yet another victory for progressives: an anti-abortion nominee bites the dust, the Supreme Court avoids the stain of another member with a history of exploiting women, and victims of sexual assault needn’t be demoralized by yet another example of the system looking the other way.

True, but a bit short-sighted. If Kavanaugh is out, Trump will nominate an ideological soulmate who, if the White House bothers to vet the choice beforehand, will be pushed through the Senate well before next January when control of the chamber could shift. While avoidance of the stain and demoralization that would have occurred had Flake not insisted on the investigation represents a significant gain, it pales in comparison to the hell Trump’s Congressional minions will wreak over the next two years should Democratic anger and turnout be tamped down and the Dems fail to win control of at least one of the houses of Congress as a result.

If, on the other hand, Kavanaugh’s account is supported by FBI findings, then the anger directed his way by progressives will recede over time to the level felt for the four other justices who may be poised to turn back the clock on abortion and other important rights. Thus, either way the investigation tips, liberals may pay a mighty high price for a modest triumph of due process and the short-lived pleasure of having spat in Donald TrumpDonald TrumpYoungkin ad features mother who pushed to have 'Beloved' banned from son's curriculum White House rejects latest Trump claim of executive privilege Democrats say GOP lawmakers implicated in Jan. 6 should be expelled MORE’s eye.    

In our Alice in Wonderland world of politics, perhaps it is only fitting that Donald’s Trump’s Republican adversary de jour, Jeff FlakeJeffrey (Jeff) Lane FlakeFlake donating unused campaign funds to Arizona nonprofit focused on elections: report Biden nominates former Sen. Tom Udall as New Zealand ambassador Biden to nominate Jane Hartley as UK ambassador: report MORE – a decent man who stood toe to toe with the President and introduced an element of common sense and fairness into the Kavanaugh confirmation process – may have inadvertently helped sustain the President’s autocratic grip on power. As King Pyrrhus lamented after a costly victory against Roman troops, “Another such victory, and we are lost.” 

Jay Sterling Silver is a law professor at St. Thomas University School of Law. His commentary has appeared in The New York Times, The Washington Post, and other national media.