Arizona Senator Jeff Flake is right where he likes to be: at the center of attention, moralizing on every TV screen and positioning himself as the essential man in the Senate from which he will soon retire. The fear is that, as usual, the Republican senator from Arizona is pulling his punches, creating more confusion than certainty and, if past is prologue, preparing for an act of compromise rather than conscience.
For now, however, Flake has opened an avenue for renewing the system of checks and balances that Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chuck Grassley have abandoned. We should utilize it. But we should not accept attempts by Flake or anyone else to limit how far we can take it.
On Friday afternoon, moments before the Senate Judiciary Committee voted to support the nomination of Judge Brett Kavanaugh to the Supreme Court, Flake announced to his fellow members of the committee that he wasn’t so sure about what it was about to do. No, the Republican who frequently criticizes Donald Trump but rarely breaks with the president did not say he was going to join Democrats in voting to block Trump’s scandal-plagued nominee to the Supreme Court. In fact, Flake had already revealed that he would vote for Kavanaugh’s confirmation.
After the senator announced his planned vote, however, he was confronted in a Capitol elevator Friday by Maria Gallagher, who said: “I was sexually assaulted and nobody believed me. I didn’t tell anyone, and you’re telling all women that they don’t matter, that they should just stay quiet because if they tell you what happened to them, you are going to ignore them.”
The Arizonan did not change his vote. But during the committee session, Flake acknowledged the the poignant and powerful testimony of Dr. Christine Blasey Ford on allegations that Kavanaugh sexually assaulted her. He admitted that Thursday’s hearing had left Kavanaugh’s critics “justifiably uncomfortable” about Judiciary Committee chairman Grassley’s rush to approve the nomination. With this in mind, Flake said, “I think that we ought to do what we can to make sure that we do all due diligence with a nomination this important.” What to do? “I think it would be proper to delay the floor vote for up to but not more than one week, in order to let the FBI do an investigation, limited in time and scope to the current allegations that are there,” said the senator.
As usual, Flake was more philosophical than specific. That made the vote that followed his announcement all the more chaotic. Several senators seemed to be uncertain about whether they were voting on the Kavanaugh nomination or on some kind of amendment from Flake. When the dust settled, Grassley was celebrating an 11-10 party-line vote in support of Kavanaugh.
It was a muted celebration, however. Flake had sided with his fellow Republicans. But the Arizonan had attached an asterisk to his acquiescence—that call for a one-week delay and an FBI inquiry. Moments later, Alaska Senator Lisa Murkowski, a Republican who is not on the committee, said she had consulted with Flake and supported the delay. Then, Senator Susan Collins, R-Maine, aligned with Flake and Murkowski. McConnell had to respect the demand—since the combination of 49 Democrats and at least three Republicans left him without the votes required to advance the nomination. (The bare minimum required to confirm Kavanaugh would be 50 votes from senators and a tie-breaking 51st vote from Vice President Mike Pence.)
In short order, to the surprise of many, President Trump agreed to get the FBI back on the case. On Friday afternoon, Trump sounded conciliatory, describing Dr. Ford’s testimony as “compelling” and saying that, while he still backs Kavanaugh, he wants McConnell and Senate Republicans to do “whatever they think is necessary” to complete deliberations on the nomination.
That sounds good. But beware. Trump has a history of going from conciliatory to combative at the drop of a hat—or the posting of a tweet. And what McConnell thinks is “necessary” may not meet the standards that are entertained by Flake, Murkowski, Senate Democrats or the American people.
So this is a hot mess that could yet get messier. And the messiest part had to do with the definition of the inquiry.
Flake’s intervention has raised the prospect not merely of a delay but of an inquiry that could derail the Kavanaugh nomination. That is welcome news for critics of Kavanaugh. Unfortunately, what Flake has proposed is not a full inquiry into the many credible complaints that have been raised with regard to the nominee since the Federal Bureau of Investigation completed initial background checks on Kavanaugh.
The senator from Arizona said Friday the investigation should be “limited in time and scope to the current allegations.” But which “current allegations” does he mean? Certainly the issues that have been raised so powerfully by Dr. Ford must be reviewed. But what about the allegations from other women regarding other assaults? And what about the overwhelming evidence that Kavanaugh has lied, repeatedly, to the Senate and to the American people?
Current and former senators have bluntly charged that Kavanaugh perjured himself while testifying under oath to the Judiciary Committee. The senior member of the Senate, Vermont Democrat Patrick Leahy, says of Kavanaugh: “I have never been more concerned about a Supreme Court nominee’s basic willingness and unwillingness to be truthful under oath.” Former senator Russ Feingold, a Wisconsin Democrat who served on the Judiciary Committee when Kavanaugh appeared before it in the 2000s, has described “the nominee’s disturbing willingness to avoid the truth.” As one of the committee members who questioned the judge, Feingold cites “clear evidence showing that Kavanaugh lied under oath during the 2006 confirmation hearing for his spot on the US Court of Appeals for the DC Circuit.”
Four veteran Senate aides—Bob Schiff, who served as chief counsel for Feingold; Lisa Graves, who served as chief counsel for nominations for Leahy; Kristine Lucius, who served as nominations counsel and staff director for Leahy; and Jeff Berman, who served as chief counsel for Senator Charles Schumer—have written that “We watched the testimony of Judge Brett Kavanaugh before the Senate Judiciary Committee with dismay and disbelief. His many misleading and false statements cast serious doubt on whether he should be confirmed to a seat on the US Supreme Court.”
Shouldn’t Kavanaugh’s “many misleading and false statements” to the Senate be examined? Isn’t an FBI assessment of the perjury issue something the Senate needs to consider in and of itself? And isn’t information about the nominee’s pattern of perjury something that must be considered when weighing Kavanaugh’s claims regarding the incidents Dr. Ford and others have described?
It is reasonable to suggest that the Federal Bureau of Investigation is capable of conducting a rapid inquiry into the allegations against Kavanaugh. Although the prospect that speed might trump thoroughness is a legitimate concern, there are those who argue that an adequate inquiry is possible in a week. But it really is not reasonable to limit the scope of the inquiry in ways that excludes consideration of the many new issues that have arisen regarding this nomination—and of the nominee’s credibility. How can it be possibly be suggested that the Kavanaugh nomination has received proper scrutiny if his lying under oath remains unexamined?
A limited inquiry is insufficient to meet the constitutional standard for the confirmation process in which the Senate is now engaged. It fails to provide senators with what they require: the information that is necessary to provide informed advice and consent for a nomination to serve on the Supreme Court of the United States.