Midterm Time Capsule: Good for Jeff Flake

Senator Jeff Flake, of Arizona, shown while seated, but standing up today. (Joshua Roberts / Reuters)
Editor’s Note: This article previously appeared in a different format as part of The Atlantic’s Notes section, retired in 2021.

According to the Washington Post just now, Senator Jeff Flake, of Arizona, who is a Republican and a member of the Judiciary Committee, has said that a vote on Brett Kavanaugh’s nomination to the Supreme Court should be delayed, until his latest accuser (Christine Blasey Ford) can testify.

As the story says:

In an interview with The Post, Flake said that Ford “must be heard” before a committee vote.

“I’ve made it clear that I’m not comfortable moving ahead with the vote on Thursday if we have not heard her side of the story or explored this further,” said Flake, who is one of the committee’s 21 members. Republicans hold an 11-to-10 majority on the panel and Flake’s opposition to a vote could stall the nomination….

“For me, we can’t vote until we hear more,” he said.

Good for Senator Flake. (Assuming he backs this up.)

On the merits, this is not even a close call. As I argued in a long post last night, as David Frum argued today, and as Garrett Epps explained with rich legal-political detail, a rush to judgment is the last thing the Senate should be contemplating with Kavanaugh.

He is being considered for a lifetime appointment to one of the most powerful, and least accountable, roles in American governance. Two very experienced senators (Patrick Leahy and Dianne Feinstein) have directly accused Kavanaugh of lying under oath about his past political activities. If the accusations of sexual aggression are true, then he has lied to investigators and senators about this as well.

I don’t know the underlying truth of any of these matters. But neither do the senators. There is simply no defensible argument, on any front, for rushing to an irrevocable decision whose consequences could last for decades.

(Irrevocable? As I explain in this piece, once a justice is sworn onto the Supreme Court, he or she is effectively above the law. The last impeachment of a justice was in 1805—and that justice, Samuel Chase, stayed on the Court. The evidence about Clarence Thomas has mounted since his rushed confirmation 27 years ago, but it doesn’t matter. Decades? Kavanaugh is 53 years old. Ruth Bader Ginsburg is 85. If he lasts as long as she has, he could be there for eight more presidential races. )

The only argument for a rush, then, is brute-force political power. Senate Majority Leader Mitch McConnell wants to get this vote done now, because he thinks he can. This is of course the same McConnell who refused to have the Senate even consider a nomination that Barack Obama made 10 months before he left office. But 52 days before the next election, McConnell is applying the pressure to get the vote done now:

Now, while the Republicans have a 51-49 Senate majority. (Which, whatever happens in the midterms, they should in any case have through the end of the year.) Now, before any more documents or complications might come out. Now, before accusations of lying-under-oath from senior senators can be explored or adjudicated. Now.

As I’ve mentioned many times in this space, McConnell—and, beyond him, Donald Trump—can get away with what they are doing because not even one member of their razor-thin Republican majority has been willing to stand up to them.

This evening, at least for this moment, one of them has. Respect to Senator Flake.

And I have to amend my list of Republicans willing to stand up for principles and procedure. It would now read:

  1. Jeff Flake

UPDATE. Via Politico I see that Senator Bob Corker, of Tennessee, who like Flake is not running for re-election, has now said that the vote should be postponed.

Good for Senator Corker.

The list could read:

  1. Jeff Flake
  2. Bob Corker

September 17 update, 12:00 noon:  Senator Susan Collins, of Maine, has just called for both Kavanaugh and Ford to testify under oath before the Judiciary committee.