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The FBI’s Kavanaugh Investigation and the Senate’s Legitimacy

Despite the probe, we could still see a rush to confirmation. That would further damage the chamber’s reputation.

October 3, 2018

It’s not yet clear how energetic the additional FBI investigation of Judge Brett Kavanaugh will be — and the signs so far aren’t encouraging. But the deal that led to the probe, negotiated Friday by Republican Jeff Flake and Democrat Chris Coons, at least put a temporary pause on a GOP-driven rush toward confirmation that would have further damaged the fraying reputations of both the Supreme Court and the Senate.

The retiring Flake, who described himself as “a man temporarily without a party” in a New Hampshire speech Monday night, has been struggling to explain his most powerful statement of political apostasy during his nearly 16 years in Congress. Until Friday, Flake’s rhetoric may have been anti-Trump, but his actions remained those of an orthodox Senate Republican. But then, by threatening to withhold his vote for Kavanaugh’s confirmation on the Senate floor unless the FBI made further inquiries, Flake belatedly asserted his power as a swing vote in a 51-to-49 GOP-controlled Senate. (He had the leverage to do so, of course, because two other Republican senators, Susan Collins and Lisa Murkowski, backed him up.) 

After his speech to the New Hampshire Institute of Politics at St. Anselm College — a venue that will fuel talk about a 2020 presidential bid — Flake summarized his motivation in an interview with WMUR, the largest TV station in the state. “We need a process that gives legitimacy to the [Supreme] Court,” he said. Reliving the moment Friday when he asked Coons to join him for private negotiations, Flake added, “The food fight that I saw in the committee that morning, that’s what made me walk over to Chris and say, ‘Can’t we do something better?’”

The key word in Flake’s explanation was “legitimacy.” 

For reasons that cannot solely be attributed to Donald Trump, the legitimacy of institutions from the Supreme Court to the Senate to, yes, the FBI has lately been called into question. Coons made an analogous point when he announced the Friday agreement to the Judiciary Committee: “Senator Flake and I share a deep concern for the health of this institution and what it means to the rest of the world and to our country if we are unable to conduct ourselves respectfully and in a way that hears each other.”

The folkways and friendships that hold institutions together are not fashionable in these hyper-partisan times. Once, as the 1950s cliché went, senators were either “show horses” or “work horses.” And there was ill-disguised scorn toward “show horses” like John Kennedy whose ambitions were clearly not confined to Capitol Hill. 

In today’s Senate, there are “show horses” and “invisible horses.” Coons, who was elected to Joe Biden’s Delaware seat in 2010, is not a frequent guest on Sunday talk shows nor is he a coveted speaker at Democratic Party dinners. But Coons’s quiet skills were needed on Friday afternoon when it looked like the Kavanaugh nomination was about to be rammed through the Senate by Mitch McConnell. 

One of the hardest things in public life is to momentarily put your personal views aside — as Flake did with his preference for conservative jurists — for the good of the institution. While I do not claim expertise as a Supreme Court watcher, it’s been reported that Chief Justice John Roberts thought about the credibility of the institution when he twice bitterly disappointed Republican conservatives by upholding key provisions of the Affordable Care Act. 

Remember that a dying John McCain in his 2017 speech explaining his vote to save Obamacare predicated his objections not on the policy itself but rather on how McConnell and his fellow Republicans were abusing “regular order” and the rules of the Senate. As McCain said, in a speech that obviously influenced Flake, “That’s an approach that’s been employed by both sides, mandating legislation from the top down, without any support from the other side, with all the parliamentary maneuvers that requires.”

McConnell — far more than even his hyper-partisan Democratic predecessor Harry Reid — seems determined to destroy the Senate in order to save his party. There is no principle behind McConnell’s current pledge to begin voting on Kavanaugh this week, regardless of what the FBI may or may not discover. In fact, the only restraint on McConnell is the question of whether he has the votes to ram the nomination through. 

Of course, Flake’s rebellion may not last the week, especially if the White House and McConnell are allowed to continue to narrow and thwart a full FBI investigation. In that case, the efforts by him and Coons (like McCain before them) to return to the grand traditions of a deliberative, collegial Senate will have been in vain. And that leaves aside the damage to the Supreme Court that would come from welcoming a new justice under a cloud of sexual assault allegations, who used his confirmation hearings to defiantly reinforce his partisan bona fides. 

But at the very least, Flake’s independence has increased the chances that a closer approximation of the truth will ultimately come out. These days, that may be as much as we can hope for.

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

(Image: Alex Wong/Getty)