What Senator Flake Gets Right, and Wrong

I have a few observations on Jeff Flake’s interview with McKay Coppins:

McKay Coppins: As of Friday morning, you were planning to vote to confirm Brett Kavanaugh. By the afternoon, you were calling for an FBI investigation before you could support his confirmation. What happened in those few hours that changed your mind?

Jeff Flake: I don’t know if there was any one thing, but I was just unsettled. You know, when I got back to the committee, I saw the food fight again between the parties—the Democrats saying they’re going to walk out, the Republican blaming everything on the Democrats.

And then there was [Democratic Senator] Chris Coons making an impassioned plea for a one-week extension to have an FBI investigation. And you know, if it was anybody else I wouldn’t have taken it as seriously. But I know Chris. We’ve traveled together a lot. We’ve sat down with Robert Mugabe. We’ve been chased by elephants, literally, in Mozambique. We trust each other. And I thought, if we could actually get something like what he was asking for—an investigation limited in time, limited in scope—we could maybe bring a little unity.

We can’t just have the committee acting like this. The majority and minority parties and their staffs just don’t work well together. There’s no trust. In the investigation, they can’t issue subpoenas like they should. It’s just falling apart.

The most important piece of information in that response is that Sen. Jeff Flake changed his mind because of what an opposing senator said. But it’s important to note that Flake readily admits that he wouldn’t have listened to the same words if spoken by a different Democratic senator. He was willing to listen to Chris Coons because he’s established a relationship with him. The lesson is that being an effective senator is not simply a matter of coming up with the right argument or giving the best speech. To be truly effective, you need to earn and maintain some trust. What makes the partisans’ hearts swell is different from what delivers results for those partisans, and Chris Coons is a vastly unappreciated senator who should serve as a role model to newcomers.

The rest of Flake’s response is fairly obvious stuff to any casual observer of Congress. The two parties do not get along or function in a minimally collegial way. I blame conservatives for this, but things like the Coon-Flake collaboration are rare and getting rarer all the time.

Coppins: So, you were motivated mainly by preserving institutional credibility?

Flake: Two institutions, really. One, the Supreme Court is the lone institution where most Americans still have some faith. And then the U.S. Senate as an institution—we’re coming apart at the seams. There’s no currency, no market for reaching across the aisle. It just makes it so difficult.

Just these last couple of days—the hearing itself, the aftermath of the hearing, watching pundits talk about it on cable TV, seeing the protesters outside, encountering them in the hall. I told Chris, “Our country’s coming apart on this—and it can’t.” And he felt the same.

It’s a shame that Flake is leaving the Senate. It’s true that his replacement will potentially have a vastly better voting record or even provide for a Democratic majority in the Senate, but Flake seems to be alone or nearly so among Republicans in recognizing the need to take steps to tamp down the divides that are growing in our country. He’s gets the problem both for Congress and for the Supreme Court, but he won’t be there much longer to use his positive influence.

Coppins: Heading into Friday, what factors were you weighing as you decided how to vote?

Flake: It was a sleepless night. I was getting calls and emails for days from friends and acquaintances saying, “Here’s my story, here’s why I was emboldened to come out.” Dr. Ford’s testimony struck a chord, it really did, with a lot of women.

Coppins: What was it like hearing from some of those women?

Flake: I didn’t expect it. I mean, we’re getting women writing into the office. People we don’t know. Other offices, I’m told, are having the same experience.

In the post-Pie Fight era of this blog, I got my own education from users and diarists about just how alarmingly prevalent sexual abuse of women is in our society. It changed how I viewed the world, and it’s nice to see other men go through a similar process–especially powerful men with votes in the Senate. Hopefully, this will have an positive impact on more than a small handful of politicians, from both parties.

Coppins: The footage of sexual assault survivors confronting you in the elevator Friday has been widely viewed. What was going through your mind when they were talking to you?

Flake: Obviously, it’s an uncomfortable situation. But it was—you know, you feel for them. It was poignant.

I mean, keep in mind, their agenda may be different than mine. I think some of their concern was how Kavanaugh would rule on the court. They may have been there prior to the allegations against him because of his position on some issues. But it certainly struck a chord.

This is where we can still see the impact of tribal loyalty on Flake. He has a hard time listening to people who have a different ideology unless they’ve both been chased by elephants in Mozambique or have some other kind of bonding experience. A lot of people are this way, especially on the right side of the political spectrum, which is why I don’t write in ideological terms very often. It’s simply not persuasive political rhetoric. When I’m brutally critical of Republicans, it’s almost always on moral terms rather than ideological ones, and, truthfully, I more apt to consider moral critiques from Republicans than ideological arguments, too.

Coppins: As of now, are you planning to vote to confirm Kavanaugh unless the FBI finds something in the next week that changes your mind?

Flake: Yes. I’m a conservative. He’s a conservative. I plan to support him unless they turn up something—and they might.

This is the bottom line. Even for Flake, ideology is the ultimate barrier to correct moral thinking. I wrote a piece last week making the case against Kavanaugh on completely non ideological terms and someone on Twitter noted that I’d failed to criticize him for some of his rulings as a judge. That’s intentional. His rulings as a judge are the best argument for him from the point of view of every single Republican in the Senate.

Kavanaugh should have seen enough from Kavanaugh in the hearings and record to not want him on the Supreme Court based solely on his truthfulness and temperament. He doesn’t need ironclad proof that he attempted to rape someone and that kind of proof isn’t possible anyway without an unexpected confession. Flake knows that Kavanaugh is toxic and that he’d remain so on the Supreme Court, so he should turn around his standard and say that absent compelling evidence that Dr. Ford has been lying or that her story cannot be true, he can’t support someone so under legitimate suspicion being on the Court with a lifetime appointment.

But he says, “he’s a conservative; I’m a conservative,” as if that alone is enough to justify his confirmation. Flake is falling short here precisely because he’s got ideological blinders on that put desired judicial outcomes ahead of other, higher and more important considerations.

Coppins: What do you want to to know from the FBI? Are there any specific questions lingering in your mind, or witnesses you’re eager to hear from?

Flake: Well, obviously, Mark Judge. That’s the one that sticks out because he was mentioned so much by Dr. Ford, and he might be able to shed some light on her recollection of time and events.

Yes, obviously Mark Judge is the most important witness who needs to be interviewed. He was supposedly in the room during the attempted rape of Dr. Ford. But this is a really inadequate response. What he wants to know is if her story stands up or whether it falls apart under scrutiny. Could a middle-aged woman living in California by pure chance and memory place the same people at a party that are listed on Kavanaugh’s calendar, correctly remember where one of them worked in the weeks afterwards, know that the accused weren’t traveling in Europe that summer or add in all the other details without any of it being disconfirmed?

If Dr. Ford could not have reasonably concocted such a story without making glaring errors, then it’s much more likely that she’s telling the truth. The FBI won’t find hidden camera footage or unseen witnesses, so absent confessions all they can do is try to disprove that the event could have happened under anything approximating the circumstances she described.

She was credible as a witness. So long as that doesn’t change, Kavanaugh should definitely not be confirmed.

Coppins: Your colleague, Ted Cruz, predicted that Mark Judge will just plead the fifth if he’s asked about the allegations—would that change the calculus for you?

Flake: You know, all we can do is ask. We’ve got to try.

This is barely responsive to the question. If Judge refuses to testify on the basis of potential self-incrimination, that ought to influence Flake one way or the other. You can’t give Kavanaugh a pass because his buddy hid behind the Fifth Amendment.

Coppins: You talked earlier about the crisis of authority facing American institutions. Do you worry that confirming Kavanaugh with these allegations hanging over him will do some damage to the long-term credibility of the Supreme Court?

Flake: Obviously. I’ve felt that this delay is as much to help him as us. My hope is that some Democrats will say “Hey, we may not change our vote, but this process was worthy of the institution, and we feel satisfied.” That means something. The country needs to hear that.

This sounds dangerously like Flake is intent on confirming Kavanaugh absent some kind of new evidence emerging from the investigation, but, again, the nature of this investigation is that the FBI can much more easily discredit Dr. Ford than find more compelling evidence than Dr. Ford’s testimony against Brett Kavanaugh. She was credible, so if her story stands up the Democrats are not going to think the process justifies confirmation. The country needed a better process and Flake thankfully provided for that, but he won’t have helped the divides in the country if he confirms Kavanaugh anyway when it’s clear that the FBI could not bring significant additional doubt onto Dr. Ford’s allegations.

Senator Flake should be commended for what he’s done and what he’s trying to do, but he’s still to bound up in the partisan warfare to be truly effective at leading us out.
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