Preferring verbal felicity to practical wisdom, a character in a Benjamin Disraeli novel quipped, “A majority is always the best repartee.” Not really. Open societies that want to remain so should prefer persuasion to raw power, even the power of majorities. Which is why Sen. Jeff Flake (R-Ariz.) served the nation, its highest tribunal, constitutional morality and even his ungrateful party by not being a team player.
A minority of Americans are perpetually infuriated, and the Republican portion of that minority is furious with Flake because he used his leverage in a closely divided Senate to compel the FBI investigation of accusations against Judge Brett M. Kavanaugh. Do enraged Republicans think the national interest, or even their party’s interest, would have been well-served if, with the embers still smoldering from Christine Blasey Ford’s and Kavanaugh’s testimonies, Senate Republicans had used their legislative muscle to shove Kavanaugh’s confirmation to completion by now?
In that case, Justice Kavanaugh — 20 percent of a majority on a court often divided 5 to 4 on contentious matters — would have served under a cloud of the suspicion that he got there only because his party would not countenance a reasonable delay that would enable the FBI to seek pertinent information. But how much of a delay is reasonable partly depends on what information is deemed pertinent.
Flake’s Republican denouncers accurately anticipated that the FBI investigation and Democrats’ complaints about it would begin simultaneously. Quickly abandoning their demand for one week, Democrats said that any time limit is “arbitrary” and, besides, is unacceptable because the FBI should follow any evidence relating to his “character” or “temperament.” This, however, surely is pertinent: Even before Ford’s letter alleging Kavanaugh’s sexual assault became public, and before some of his boldly categorical assertions to the Judiciary Committee concerning his high school and college comportment made those subjects pertinent, not one of the 49 Democratic senators announced support for his confirmation.
With midterm elections impending, Democrats will soon say: “We should wait and let the voters be heard from.” This argument for a plebiscitary confirmation process is an argument that Republicans richly deserve to have turned against them. It is as anti-constitutional and unconservative as it was in March 2016 when it was concocted for use against the nomination of Merrick Garland. Had the Republican-controlled Senate confirmed him — he was manifestly qualified, moderate and 63 — today’s nominee to replace Anthony M. Kennedy could have been Neil M. Gorsuch. Are Republicans happy with the way things have worked out?
At this point in a cringe-inducing process that is not apt to become less so, one consideration is more important than all the other considerations — justice for her, justice for him, raising awareness about bad sexual behavior, etc. — combined: What best serves, or least further injures, the court’s institutional standing? Which is worse, confirming Kavanaugh, who diminished himself by his strident self-defense, or not confirming him, validating what has been done to him with as yet uncorroborated accusations?
Something might be salvaged from the current nadir, although not enough to compensate for damage already done. The FBI investigation might reveal nothing, or something, that definitively substantiates, or refutes, Ford’s or Kavanaugh’s sworn assertions. Flake bought time for this by acting like a senator. By, that is, recognizing that the separation of powers retains its vitality only when legislators are more interested in their Article I powers and responsibilities than in the preferences of any president.
In his book “Conscience of a Conservative,” Flake recalls when former House majority leader Tom DeLay (R-Tex.) said approvingly that the statue in the Lincoln Memorial depicts one of the president’s hands “in a perpetual fist.” Actually, neither Lincoln’s visage nor his left hand suggests pugnacity. The statue is, after all, situated next to the words “with malice toward none.” DeLay saw what he wanted to see early in today’s era of smash-mouth politics, when “confirmation bias” has several meanings.
In Robert Penn Warren’s “All the King’s Men,” the 1946 roman à clef about Louisiana’s Huey Long, the populist governor Willie Stark searches for something unsavory in a judge’s background: “Man is conceived in sin and born in corruption and he passeth from the stink of the didie to the stench of the shroud. There is always something.” And when an aide tells Stark that a particular act is beneath the dignity of a governor, Stark replies that “there ain’t anything worth doing a man can do and keep his dignity.” We should hope, against much current evidence, that this is not true.