If he’s going to vote no for this reason, that Kavanaugh came off too much like a partisan political nominee in last Thursday’s opening statement rather than a SCOTUS nominee, why’d he demand the FBI probe?
Or did he do that as a favor to Collins and Murkowski, who may have also wanted the probe but feared the political consequences of requesting one more than the retiring Flake did?
I don’t think he means this the way it sounds here. Watch, then read on:
Sen. @JeffFlake on Judge #Kavanaugh: "The interaction with the members was sharp and partisan and that concerns me. And I tell myself you give a little leeway because of what he's been through. But, on the other hand, we can't have this on the Court. We simply can't." pic.twitter.com/0horDp9iGn
— CSPAN (@cspan) October 2, 2018
Atlantic reporter Elaina Plott pressed him about the “we can’t have this on the Court” comment afterward. Flake was “rattled”:
I caught up with Flake briefly as he left the event, and asked if this meant he would not vote to confirm Kavanaugh, even if the FBI cleared him by week’s end. He appeared rattled, and his handlers rushed him into the stairwell. “I didn’t say that …” he stammered. “I wasn’t referring to him.”
“Rattled” has been his default mode since January 20 of last year. I don’t think he meant to imply in the clip that he was preparing to vote no on Kavanaugh because of his tone at the hearing, though. How could he mean that when he said the following to another Atlantic reporter, McKay Coppins, just three days ago?
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.
If he thought Kavanaugh’s tone was disqualifying in itself, he had a chance to say so right there. His point in the clip, as I take it, was merely that the Court can’t tolerate public partisan bickering among its own members the way Congress routinely does, and as Kavanaugh briefly engaged in at the hearing. He’s worried about institutional respect for the judiciary, the same concern that ostensibly led him to request the FBI probe, hoping it’ll dissolve the cloud of suspicion over Kavanaugh’s head. Having the nominee go full Fox News beastmode with Amy Klobuchar is “troubling” or whatever but not itself grounds for voting no given Kavanaugh’s understandable indignation at the accusations that have been thrown at him. Having him go Fox News beastmode with Ruth Bader Ginsburg during oral arguments next year would be a much bigger problem. That’s what he’s worried about. He’s warning Kavanaugh that he expects him to behave with decorum if he’s confirmed.
Although I don’t think he’s really worried about that. Kavanaugh has no history of partisan bombthrowing from the bench that I’m aware of. He didn’t lapse into beastmode at any point during his confirmation hearing either. The reason he did it last week was either due to sincere anger at what he’s alleged to have done (Flake himself has said he can sympathize with Kavanaugh’s predicament in that regard) or a calculated strategy that he needed the Republican base cheering him on in order to keep the pressure on GOP centrists like Collins and Murkowski to vote yes. A low-key series of denials wouldn’t have done that. A Trumpish declaration that the proceedings were a disgrace and that Democrats were engaged in a sort of witch hunt would, and did.
Flake’s right too about the judiciary being the most trusted of the three branches. You need to go back to the Nixon era to find the last time it wasn’t:
The nonpartisan public comportment of the justices is worth something in terms of institutional respect even though their actual rulings are often pure party-line. Verrrrrrry rarely do any of the Court’s Democratic appointees join with the conservatives in a case with major cultural implications, but because they mostly refrain from public commentary sniping at the right, SCOTUS still enjoys a degree of legitimacy that the other two branches don’t. Although that may have begun to change in the last few years, and not because of Brett Kavanaugh. Turning Ginsburg into a “Notorious RBG” folk hero was the left’s invitation to her to be more of a partisan hack too. Flake would do well to remember that in future comments along these lines.
As for his buddy Chris Coons, here’s all you need to know about him:
Senator Coons says it needs to be routine again for lawmakers to vote for qualified officials, even if they identify more closely with the other party. (Coons, I should note, did not vote for Gorsuch.)
— Elaina Plott (@elainaplott) October 2, 2018
We need to vote based on qualifications, not tribal loyalties, he says, yet he gave thumbs down last year to an eminently qualified judge whom no one laid a glove on during his confirmation hearing. I repeat what I said yesterday: I’m mighty curious to see how generously Coons repays Flake for his show of bipartisanship in demanding an FBI probe of Kavanaugh. The fact that he’ll vote against confirmation is a given. But will he at least say, “I’m glad we waited a week and took this step, the results make me feel better about Judge Kavanaugh?” If not, Flake will look every bit the chump righties have accused him of being this week.