A Rare ‘Gentleman’s Agreement’ in the Senate

Brett Kavanaugh’s Supreme Court nomination seemed poised to advance until Senators Jeff Flake and Chris Coons shook hands on a deal calling the FBI back for further review.   

Senator Jeff Flake of Arizona (Jim Bourg / Reuters)

Brett Kavanaugh may yet be confirmed. Senate Majority Leader Mitch McConnell may somehow find a way to unravel it, and President Donald Trump could still balk.

But for at least one brief, shining moment on Friday, Senators Jeff Flake and Chris Coons’s gentleman’s agreement to postpone a floor vote on Kavanaugh’s nomination for no more than one week to allow a swift FBI investigation of the sexual-assault allegations against him showed that even in this sulfurous age, in the Senate, a single member can still make a difference—and friendship can, too.

Their agreement was not a formal motion or amendment, and the Senate Judiciary Committee never so much voted on it. The procedure was so unorthodox that when the hearing ended, the committee’s ranking member, Dianne Feinstein, was befuddled by what had just happened. “This is all a gentleman’s and woman’s agreement,” the chairman Chuck Grassley was overheard assuring her on an open mic at the committee dais. (The committee later announced that it would ask the Trump administration to instruct the FBI to begin a supplemental background investigation over the next week into “current credible allegations” against Kavanaugh.)

The Flake-Coons concordat had teeth for one overriding reason: the brutal partisan math of the Senate, in which every Republican vote will count. McConnell knows that he cannot take the nomination to the floor if Flake is unwilling to vote for it, and three crucial swing votes—Susan Collins of Maine, Lisa Murkowski of Alaska, and the Democrat Joe Manchin of West Virginia—remain undecided.

Coons, a Delaware Democrat and onetime volunteer relief worker in Kenya, and Flake, the Arizona Republican who has been one of Trump’s sharpest critics and is retiring this year, have forged a genuine friendship in their official travels around the world, and it showed on Friday. The day began with a bang, as Flake issued a press release announcing that he intended to vote for Kavanaugh in the committee, seemingly ending any suspense about the next step in his confirmation. But within hours, two developments worthy of Frank Capra or Aaron Sorkin turned the tables in a way seldom seen in today’s Washington.

The first was that Flake was waylaid outside a Capitol Hill elevator for several minutes by a group of impassioned survivors of sexual abuse, who demanded to know how he could support Kavanaugh and implored him to look them in the face as he cast his eyes downward and tried to move on. The second was a calm but heartfelt plea from Coons in the committee hearing for a brief delay.

Coons recounted how, as he listened Thursday to Christine Blasey Ford describe how Kavanaugh had sexually assaulted her when they were in high school, five personal friends had called his cellphone to convey their own experiences as victims of sexual assault.

“That suggests that there is an ocean of pain in this nation,” Coons said, “not yet fully heard, not yet fully addressed, not yet appropriately resolved. And I, for one, will not countenance the refrain said by too many in response to these allegations that it happened too long ago and that in our nation, boys will be boys. We must do better than that, and we must set a better standard than that for our own families and for our future.”

Jimmy Stewart as Jefferson Smith himself couldn’t have put the stakes more plainly, and when he was finished speaking, Coons and Flake left the committee room to go behind closed doors where, real-time cable-news reports made plain, negotiations on a compromise— ultimately involving other Democrats—got underway.

When Flake returned to the committee room, the grim faces on the Republican side foreshadowed the outcome. Flake said he would vote to send Kavanaugh’s name out of committee, but would be unwilling to vote for it on the full Senate floor without a brief FBI investigation (whose precise parameters remain to be determined).

“The country is being ripped apart here,” Flake said, his face flushed and his mien somber. “And we’ve got to make sure we do due diligence.” Flake had publicly agonized over his vote, and barely spoke in Thursday’s contentious hearing. His agreement with Coons seemed to suggest that he agreed with the logic expressed by virtually all the Democrats: that one could not simultaneously find Ford a credible witness and vote for Kavanaugh without further investigation.

As the committee meeting broke up, members from both parties seemed slightly stunned at what had just happened. “Jeff’s trying his best to bring the country together and vote the best way he knows how,” said Lindsey Graham of South Carolina, one of Kavanaugh’s fiercest defenders. Asked whether he believed McConnell would agree to the plan, Graham told reporters clustered in the hallway outside the committee room in the Dirksen Senate Office Building, “Last time I looked, you need 50 votes.”

Then Graham added, with a rueful smile, “Somebody’s got to ‘splain this to Trump, so I guess that’ll be my job.” For his part, Trump suggested he was open to the idea, at least for now. “I will be totally reliant on what Senator Grassley and the group decides to do,” he told reporters at the White House.

This was not the first time that Coons’s bipartisan diplomacy has made a dramatic difference in the Senate. Last spring, he switched his vote in the Foreign Relations Committee from “no” to “present” to help speed up the confirmation of Mike Pompeo as secretary of state, because a crucial Republican vote, Senator Johnny Isakson of Georgia, was delayed arriving at the committee hearing by his best friend’s funeral. Coons’s gesture moved the committee chairman, Bob Corker of Tennessee, to tears.

Such cross-party comity was once routine in the Senate. On the night that Senator Thomas Eagleton of Missouri was forced to withdraw as the 1972 Democratic vice-presidential nominee because of concerns about his mental-health history, the first colleague to arrive at his house to console him was the Republican Ted Stevens of Alaska, with a large salmon in hand. Hubert Humphrey and Everett Dirksen worked together across the aisle on civil rights, as did Ted Kennedy and Orrin Hatch on child care, Bob Dole and George McGovern on food stamps, and John McCain and Russ Feingold on campaign-finance reform.

Who knows what the Flake-Coons compromise may produce? But at the end of one of the most divisive weeks in modern American politics, it was reason enough to glimpse a glimmer of hope.