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Brett Kavanaugh is Jeff Flake’s most important test

Jeff Flake has a chance to truly change American politics. Will he take it?

Sen. Jeff Flake (R-AZ), who has made the defense of civility and basic decency the last act of his political career, will be decisive in the fight over Supreme Court nominee Brett Kavanaugh.
Alex Wong/Getty Images
Dylan Scott covers health care for Vox. He has reported on health policy for more than 10 years, writing for Governing magazine, Talking Points Memo and STAT before joining Vox in 2017.

Sen. Jeff Flake (R-AZ) didn’t appear to mince words when he described Supreme Court nominee Brett Kavanaugh’s ferocious attacks on Democrats, the signature piece of his defense against the sexual assault allegations endangering his nomination at last week’s hearing. Kavanaugh’s counterattacks were “sharp and partisan,” Flake said.

“We can’t have that on the Court,” the retiring Arizona senator continued, according to the Atlantic’s Elaina Plott.

Yet when Plott followed up with Flake shortly after the event Flake was speaking at, he haplessly tried to reverse himself to avoid being seen as too critical of Kavanaugh: “I wasn’t referring to him.”

This comes a few days after Flake called for the FBI to investigate the allegations of sexual misconduct against Kavanaugh. It’s a request Senate Republican leaders and the White House agreed to. But though Flake, who was confronted in the elevator earlier in the day by victims of sexual assault, seemed to be getting squeamish about Kavanaugh as a nominee, he still voted to advance his nomination out of committee anyway.

You’d be forgiven for wondering: What the hell is Jeff Flake doing?

Flake is, essentially, a man with no party and no constituency in the Trump era. He seems genuinely troubled by the direction of the Republican Party, under a president with whom he holds no personal affection, and he seems to recognize that the relatively conventional, civil conservatism he embraces might not have much of a future in that party.

Yet, frustratingly for Democrats, when the chips are down, loyalty to the Republican Party always appears to win out with the Arizona senator.

People like to mock those like Flake who defend the discourse. But the discourse is what allows our society, composed of wildly differing political views, to govern peacefully.

His response to Trump’s open mocking of Kavanaugh accuser Christine Blasey Ford at a rally Tuesday night was exemplary: “There’s no time and no place for remarks like that,” Flake said on NBC’s Today show Wednesday morning. “I wish he hadn’t have done it. It’s kind of appalling.”

But Flake might vote to put Brett Kavanaugh on the Supreme Court anyway. He has said openly that he wants to, as a matter of ideology. It is only the soberingly serious nature of the allegations against the judge, and the deep division over his nomination, that is giving Flake pause.

Jeff Flake must know that putting so divisive a man in so powerful and important a position after such serious allegations is sure to poison the discourse for decades. Whatever else you might think of him, Flake does seem sincere. He has warned the country of the dangers of partisanship and the ruthless pursuit of power and the deteriorating trust in American institutions in clear, unblinking terms.

But now he faces the ultimate test of his own convictions.

Jeff Flake, the last of a certain kind of conservative

Some important context for the entirety of Flake’s career is this: He was elected to Congress in 2000, on the George W. Bush and compassionate conservatism wave. Flake was always more of a libertarian himself, but that was still the Republican Party’s winning brand upon Flake’s arrival in Washington.

He even personified it in some ways: a Mormon family man who was personable and self-effacing and spoke about issues in humane language — and who nevertheless remained, even to this day, very, very conservative. He made his name as one of the fiercest budget hawks in the House before he was elected to the Senate in 2012.

He still is, even as he makes a maverick turn that would make his old mentor John McCain proud (both in substance and in the press adulation it attracts). There is nothing about Kavanaugh’s judicial philosophy or ideological priors that Flake finds objectionable. As Vox’s Li Zhou reported last week, Flake said this explicitly:

I wanted to support him. I’m a conservative; he’s a conservative judge. But I want a process we can be proud of. I think the country needs to be behind it. We need a more bipartisan process.

Let me emphasize again: I’m a conservative. I would love to see Judge Kavanaugh confirmed. And I hope to be able to do that, but I want a better process.

Even now, under the FiveThirtyEight formula, Flake is voting with Trump 83 percent of the time — near the bottom, as Republican senators go. But Flake has supported the president with his vote more often than moderate Sens. Lisa Murkowski (AK) and Susan Collins (ME) or libertarians Rand Paul (KY) and Mike Lee (UT).

Flake’s issues with Trump and the direction he’s taking the Republican Party are more a matter of tone than substance, though they disagree on the latter at times too. Flake, for example, tends to be a dove on immigration and sought impotently for a middle ground on the Deferred Action for Childhood Arrivals (DACA) program after Trump endangered it.

He retired rather than risk a humiliating primary loss by Trump-animated voters in Arizona, and he is spending his final months as a senator giving sternly worded and widely covered speeches warning about the death of civil discourse and fidelity to truth.

Flake’s memorable speech announcing he would not seek reelection in 2018 neatly summarized the dwindling room inside the Republican Party for conservatives like him:

It is clear at this moment that a traditional conservative, who believes in limited government and free markets, who is devoted to free trade, who is pro-immigration, has a narrower and narrower path to nomination in the Republican Party, the party that has so long defined itself by its belief in those things. It’s also clear to me for the moment that we have given in or given up on the core principles in favor of a more viscerally satisfying anger and resentment.

Jeff Flake’s opening to take a stand on Brett Kavanaugh

So far Flake has not taken any meaningful stand against the Republican Party or Donald Trump. He has spoken harshly of the president; he has feinted “no” votes on important issues. But at the end of the day, he has been a reliable Republican vote. His crusade for civility has been a lot of talk and little action.

Now he has his chance to do something important. But Flake is hesitating as partisanship tugs forcefully on his sleeves.

The portrait of Jeff Flake over the past two weeks is of a man in agony. He seems genuinely troubled by the sexual assault and misconduct allegations brought by Christine Blasey Ford and other women against Brett Kavanaugh. He has said plainly: If you believe her, you vote no.

“It was a sleepless night,” Flake told the Atlantic’s McKay Coppins of the night before he forced the FBI investigation to be reopened. “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.”

Yet he is pulled strongly in the other direction too. Some of it may be legitimate concerns about due process. Flake initially said, when he announced his support for Kavanaugh’s nomination after last week’s hearing, that he was supporting the judge in part because he felt Kavanaugh could not be convicted, based on the available evidence, in a court of law.

The pull of partisanship must be strong too. He keeps repeating “I’m a conservative” in these interviews. Republican leaders want Kavanaugh confirmed at almost any costs, fearful that pulling his nomination would demoralize their voters ahead of the midterms. Flake has surely heard repeatedly from his colleagues that he is risking political disaster for the party if he blocks Kavanaugh. For a Republican politician, or a politician of any party, that must be a serious consideration.

But Flake wants to be above politics. From that same October 2017 floor speech:

None of this is normal. And what do we, as United States senators, have to say about it? The principles that underlie our politics, the values of our founding, are too vital to our identity and survival to allow them to be compromised by the requirements of politics, because politics can make us silent when we should speak and silence can equal complicity.

A message from October 2017 Jeff Flake to October 2018 Jeff Flake: “Politics can make us silent when we should speak and silence can equal complicity.”

He is also preoccupied with the institutional standing of the Supreme Court, which may be nearing a legitimacy crisis with the American public. From his interview with Coppins:

FLAKE: 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.

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.

Jeff Flake knows what he needs to do

Jeff Flake wants to save the discourse. He wants to rescue American institutions from eroding public trust. He wants an antidote for the poisons of partisan politics.

Yet he still wants to support Kavanaugh. A Supreme Court nominee who lashed out with angry, partisan attacks when confronted with allegations he sexually assaulted a woman. A Supreme Court nominee, the most divisive in recent history, whose confirmation would stain the high court with permanent questions about the legitimacy of one of its members.

We can wonder about Flake’s motivations. Does he want an MSNBC primetime slot after he leaves the Senate? Does he want to run for president as an independent Never Trumper? Is he so dyed-in-the-wool with partisanship, whatever rhetoric he deploys in those speeches, that he couldn’t ever bring himself to vote against 40-some Republicans and with 40-some Democrats.

But all evidence suggests this is a man truly torn. A man without a party, without a president, and with almost nobody else in the legislative body he cherishes to turn to as an ally.

Jeff Flake is a man divided against himself.

But the way forward is actually startlingly simple: The only way for Jeff Flake to deliver on the aspirations for American democracy and the United States Senate that he himself has outlined is to reject Brett Kavanaugh. Yes, he will be haunted by the prospect that he may have denied an innocent man the goal toward which he has been striving his entire life. But the greater risk is confirming a man who may have assaulted women to the Supreme Court — and guaranteeing decades of partisan rancor and attacks on the court’s legitimacy.

It’s time for Jeff Flake to live up to his own ideals. There is only one course that averts the disastrous consequences he fears: voting down Kavanaugh and voting to put somebody else, some other conservative, on the court before the current Congress is over. A vote for Kavanaugh would reveal Flake to be a man who, despite his consternation and even given his thoughtfulness and basic decency, could never take a hard vote against his party.

It would reveal that his stirring speeches of civility and defense of institutions and living above partisan politics were nothing but empty air. It would reveal that, even as Flake saw the corrosive effect of political polarization and was left with no political future because of it, he himself was unable to do anything to change it.

It isn’t fair, and Flake has not been done any favors by the Democrats who clearly see a political advantage in sinking Kavanaugh, or the Republicans whose hands must be forced before they will even hit pause on the nomination of a man accused of sexual assault by a woman everyone agrees was a credible witness.

But if he’s meant anything he said in the past year, he knows the right thing to do.

Yet Jeff Flake hesitates.

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