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Jeff Flake

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Jeff Flake

Former U.S. Senator (R-AZ) and Judiciary Committee Member

Jeff Flake served as a United States representative and senator from Arizona between 2001 and 2019. Sen. Flake, a Republican, is an outspoken critic of President Donald Trump. He served on the Senate Judiciary Committee during the confirmation hearings of Supreme Court nominee Brett Kavanaugh.

This interview was conducted by FRONTLINE’s Michael Kirk on December 12, 2018. It has been edited for clarity and length.

This interview appears in:

Supreme Revenge

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Mitch McConnell Holds Open the Scalia Seat

So when Justice [Antonin] Scalia dies, Leader [Mitch] McConnell (R-Ky.) very quickly makes an announcement that they're going to wait; the Republicans are going to wait.What did you think of that announcement?

You know, I started to look at the history and found that that was not unprecedented…But I wasn’t sure it was the right thing to do either.Leader McConnell was set on it, and we all on the Judiciary Committee went along with it.

In what way didn’t you think it was right?What questions did you have about it?

Well, I didn't like the entire past 15 years of not wanting to give the president’s executive calendar a vote on the Senate floor.Ever since 2003, we’d been doing this back-and-forth, whoever was in charge, and getting worse and worse and worse in terms of actually allowing that calendar to get to the floor, the president’s nominees.And I just thought that this wouldn’t help with that development at all.

What was your thought about McConnell’s long game?What was he thinking?What was he playing there?

Well, I don't know that he knew what effect it would have on the election.I would argue it had a big effect on the election.But he knew that it would help.It would help rally the base.This is something that would cause people to come out and vote for the president and vote for the Republican nominee.Now, at that point, we didn't know that it would be Trump; we weren't sure.But he knew that that would help the Republican cause.

We've talked to people who say the amazing thing was that [Merrick] Garland was such a moderate choice, everybody could have seen him maybe coming from McConnell moving it through the process.

Yeah, that's a person who would have gotten 98 votes or 100 votes in the 1990s, just a few years before.And as we went along, I became more and more unsettled by that decision.I met with Merrick Garland.I liked him.I talked to some of his colleagues on the D.C. Circuit and knew that he was a conservative, frankly, choice for a Democratic president, so he would have been certainly a mainstream choice.

One of the questions, of course, that people raise is how did McConnell keep all of you in the box in line?

Well, I think once the Judiciary Committee had made the decision we're not going to have a hearing, then we just stuck to it.Now, as we got closer to the election and Trump was our nominee and virtually nobody thought that we would win, then I thought at that time, it’s time to change that; let's bring him forward.I actually advocated in September/October of returning to Merrick Garland thinking that if Hillary Clinton becomes president, the choice will certainly be somebody not as mainstream as Merrick Garland.

And so I started floating that out there.I also got a call from Barack Obama during that time to say: “Well, how about during the lame-duck session?If Hillary Clinton is the president-elect, surely Republicans would go at that point?”And I felt that that was right, and I actually drafted a letter which was ready to go the morning after the election.So I was ready to hit send at 12:01 after Hillary Clinton had been elected president to say, “Hey, Republicans, let’s move Merrick Garland in the lame duck.”

It seemed that Barack Obama had received an assurance from Hillary Clinton that she would be OK with that and she would likely get another choice or two and that would be all right.So I was ready to move with that, and I think some of my colleagues on the Judiciary Committee would have been as well.

The Nomination of Brett Kavanaugh

Let’s go to the Kavanaugh nomination.When he picks him—[Neil] Gorsuch sort of sails through, and everybody’s kind of conservative.Kavanaugh comes along, and immediately the Democrats are, within hours, saying, “This is an evil person; we've got to stop it.”You've tried for moderation throughout and bipartisanship throughout your career.Were you worried about Kavanaugh from the very beginning?

No.I knew that that would be the reaction that the Democrats had, and frankly I think they made a big mistake with Gorsuch, immediately opposing him and threatening to filibuster.I think they should have known that he was a mainstream, popular choice.He performed very well with the committee, and they should have known he would, because Gorsuch was not controversial.

Politically, the Democrats probably should have just let that one go, realizing that the next pick, which turned out to be Kavanaugh, would have much more of an impact, the real swing vote on the court.But they didn't.So when Kavanaugh came, and that was immediately the reaction, I think most of the country thought, well, there they go again.And no matter who was picked by the president, they're going to have that reaction.The rollout … of Kavanaugh at the White House was good, like it was for Gorsuch.I mean, the White House—keep in mind when Gorsuch was nominated, they had just been through the travel ban fiasco, and it seemed that nothing could be done well over there.

Gorsuch was rolled out, and that was a professional operation, much like you'd seen in previous administrations.And that was the case with Kavanaugh as well.The White House counsel consulted with members of the Judiciary Committee, made sure people felt they were informed, invited them to the White House.So that was rolled out well, and I thought when Kavanaugh was nominated that you saw him up there with his family.I thought that that politically, if you just put aside everything else, it was rolled out well, and it would be difficult to really oppose him, particularly because the Democrats had gone all in against Gorsuch.

You know, that first day I watched the video of the first session.[Sen. Chuck] Grassley (R-Iowa) tap, tap, tapped.Suddenly people in the crowd yelling—the Democrats are jumping all over him: “We got 62,000 documents just last night.”Put yourself in that room for me and tell me what your emotional and political reactions were to what was unfolding right there as soon as things got started.

Right.Well, you could see the protesters waiting in the back.You just didn't know when they would erupt.You knew they would, one at a time, two at a time.We were interrupted dozens and dozens and dozens of times during that process.I tell you, it was big drama, that room.There were more cameras—you could barely hear for the clicking whenever the judge would turn his head or make a motion that they wanted to capture.

So it was high drama.And frankly, the questions, the way the Democrats started in, very few had not made up their mind it seemed.They were all in.Many had said they were against, and even there were some flyers out there, apparently, with the “fill in the name,” just said the “blank—we will oppose whomever.”And that didn't augur in their favor when allegations came out, because I think most of the country concluded that the Democrats would be against anyone and that they would use any pretext to take anyone down.So that didn't work in their favor in the end.

You were on the bubble in some ways.The clock was ticking for Leader McConnell.The midterms were looming.You, Joe Manchin (D-W.Va.), Susan Collins (R-Maine), Lisa Murkowski (R-Alaska), tell me about—I don't know if you were really on the bubble or if he knew you were somebody he wanted to pay special attention to.We've talked to people who said he was watching Flake, he was watching Collins, he was watching Murkowski, because—

Are you talking about before the allegations?

This is before [Christine] Blasey Ford.

Yeah. Well, I was concerned—obviously I have my concerns with this president, with the White House and what he might do regarding the investigation.I wanted to make sure that his views on presidential power and separation of powers were where they should be.There was a lot of concern on the left, and the Democrats were concerned that he would simply dance with who brought him there and would be far more prone to side with the president on issues.So that was—I wanted to make sure that that was not the case as well.

So I studied up quite a bit.I asked him about this issue in public and in private.And I was satisfied in the end with the Hamdan case, and he kept saying over and over one of the decisions he admired most was <i>U.S. v. Nixon</i>, indicating that certainly the court stands supreme there and shouldn’t be bullied by a president.

So in the end I felt good about it, but I think he was concerned because of my concern with this White House and them wanting to use the courts to further their ends.

Christine Blasey Ford Testifies, Brett Kavanaugh Responds

When Dr. Blasey Ford testifies, does the tenor of the room change?Does it emotionally grab you in a way that was surprising to you?

Yes.

What actually happened there? I'm really talking about reaction to it rather than—

It was impossible not to be riveted with her testimony.She was compelling.That was impactful.It really was.So I think I shared that with all of my colleagues.I think everyone felt the same.That was a big deal.

Do you think it changed anything?

Yeah, it did.When I heard the news the Sunday before that she’d come out with these allegations, I immediately said she needed to testify.I knew that we couldn’t pass it off.Some of my colleagues felt that no, this is just drummed up by the other side; we shouldn’t hear her.I knew we had to.I'm glad she did testify.

Then some said, “Well, she can testify, but it has to be tomorrow or the next day, and let’s stick to our schedule.”I never saw that schedule as that important.But it did move people.And we had a meeting, a break, right after her testimony, or during her testimony at one point, and I could tell my colleagues were moved, and they were saying: “He’d better be good.He’d better have an answer, because she sounds very credible.”

And his reaction, his rebuttal?

Well, I mean, that was a tour de force, I think, in terms of indignation, and to some of us, made us wince.It did me.But on the other hand, I tried to put myself in his position and say, how would I feel if I felt that I was wrongly accused?And that's the kind of reaction I would probably have.I probably wouldn’t have blamed the Clintons or made some of the other statements he did, but I would be indignant.So that seemed very compelling and believable as well, if not a little overboard.So he answered it, and I think most of my colleagues felt like I did: If we had been accused of something like that that we felt was unjustified, in many ways I told my family and others, that's the way I hope I would act.

We've seen examples in the past of those who—famous one with Michael Dukakis, when somebody asked if somebody in your family had been raped or how would you feel, and it was just kind of a cerebral response that just didn’t seem real.This seemed real, at least, that he had felt that he had been unjustly accused.

In that back-and-forth, especially with [Sheldon] Whitehouse (D-R.I.) and [Cory] Booker (D-N.J.) and others, he and [Amy] Klobuchar (D-Minn.), he’s pretty intense coming back and forth.It's almost like something has really dramatically changed.If all of this was different in some way, even worse than Clarence Thomas/Anita Hill, it felt like this was more in the world of Trumpland, right, in some ways.

Yeah, that was frankly my biggest concern.With regard to the allegations, I've said before and I’ve maintained that position, that we could never be sure what happened 36 years before by teenagers who by all accounts had been drinking.Does anybody really know?Could anybody be certain what happened?I don't think so.But we did see how he reacted in the committee, and should that have been disqualifying given the fact that we can't have a partisan Supreme Court?

For myself, I looked at that, and I saw the reaction that he had to the allegations, and as I mentioned, that's how you would expect, I think, somebody to react if they’d been wrongly accused.Did he go overboard?Yes, but then you weigh that against his behavior on the court that he’s been serving on for over a decade.And I checked with some of his colleagues, too.Is that really him?Is that how he acts?And to a person, it was no.He had been the model of decorum and decency during his entire time.That's not just from his colleagues, but from clerks, from plaintiffs, anybody who had dealt with him, so it was totally inconsistent with the record he had had as a judge, and that meant something to me.

Delaying the Vote on Brett Kavanaugh

Let’s talk about the elevator ride, the famous elevator ride.How was that?I don't know how else to ask it.What was it like?

It was obviously intense.I had just announced just a few minutes before that I would vote to advance his nomination, but I was obviously unsettled by it.I’d been hearing from extended family members and others with their own stories, and I think all of my colleagues had had this experience.I knew that the country was unsettled, and I didn't feel good about where we were, particularly that we couldn’t just let the FBI investigate and make us all feel better in this regard.The reasons given by our leadership just didn't sit well with me.

What reasons?

Well, [that] Mark Judge, the one that everyone wanted the FBI to talk to, had lawyered up or he couldn’t be talked to, and we couldn’t go down that road.We were told that again and again.

Who tells you that?

Well, that was our leadership.They said he just can't.And some of us were troubled the night before that the affidavit that he had signed he hadn’t signed; his lawyers did.Why couldn’t he sign it?Does it have the same legal standing?We were assured yes, but then all of a sudden, within an hour or so, we had a signed copy by him.And some of us thought, if he can sign that copy, then he can be reached, and there's no reason not to talk to him.

So I went into that elevator still very troubled by the decision that I’d made, not necessarily on the merits of, I guess, the case, but that the country was being ripped apart here.And the ride in the elevator just reaffirmed that.

And then I got to the committee, and there was an all-out food fight going on with Republicans taking their time to just blast away at the Democrats for the way they had handled this, and Democrats saying, “Hey, you're not doing due diligence on this; you haven’t done right by the people.”And then I heard Chris Coons (D-Del.) give his speech, and in contrast to everything else, it was a very measured and sober recitation of what we had done and what we hadn’t done.Why couldn’t we have a weeklong investigation?The Anita Hill investigation was only four days.Why couldn’t we go just have an investigation that was limited in time and in scope, and it would make the country feel better?

And that rang true to me.I'm very close to Chris Coons.We travel a lot together, and we know each other well and trust each other.So that's when I went and asked if we could speak outside.

Susan Collins seems to be the person in the middle, that it’s really going to come down maybe to her vote.This is if you're the leader, you're sitting there counting heads, and you say: “I've got Flake.Maybe I've got Manchin, but I need Collins.”What was it like for her?I know you guys talked on the phone in that break.

Yeah, well we had met the night before, Susan Collins and me, and Lisa Murkowski and Joe Manchin.Some of the discussion was around that affidavit that was signed and that we got corrected.But Susan was still, I knew, unsettled, as was Lisa on this, and Joe as well.So when Chris and I went in the anteroom, we first talked alone until our colleagues realized what we might be doing, and then one by one, they came over, and then it got rather heated.

And this is a very small, little corridor there.The press was right outside, so whenever anybody would open the door, there were cameras shooting in and reporters starting to wonder what was going on because they had seen us go out there.

And pretty soon, after the shouting match started to occur, my colleagues [are] saying a delay won't change anything; there will be a million new allegations; it won't change any minds; it will be worse off a week from now.And finally I said, “I just want to talk to Chris.”So we holed up in a little phone booth that's there with a glass window there, and my colleagues [are] kind of pressing up against the glass to try to hear what was going on.

But part of what we were doing in there is calling Susan Collins and Lisa Murkowski, wanting to make sure that they would back me up if I would say, “I’ll vote to advance the nomination but will not vote yes unless we have an investigation,” or, “I’ll vote to advance the nomination but won't vote on the floor yes unless we have an FBI investigation.”

And they said that they would back me up on that.Then we tried to get a hold of Chris Wray at the FBI.Couldn’t. I think he was in Alaska somewhere.So [we’re] talking to Rod Rosenstein to make sure an investigation of this kind could be done.But that was an intense hour and a half back there.

Can you imagine—maybe you know; maybe you talked to the leader about it—what McConnell was thinking while you guys were closeted there?

Yeah, I knew he would not be happy.John Cornyn (R-Texas) was there in the committee, the whip.He was not happy.None of my colleagues were very happy about this.But I knew—

When you say “not happy,” Senator, what do you mean, “not happy”?

Well, not happy.Certainly not approving of this, thinking we had settled this.We were all together, and we were going to vote for him, then advance him and get it done quickly.But I knew that obviously they needed my vote.Had I voted no in committee, there are ways they could have still got it to the floor without a recommendation.That's not without precedent.So I knew that I couldn’t sink the nomination there, but I could force an investigation if I had Susan Collins with me, and hopefully Lisa as well.And they were willing to do that.So then I knew that regardless of what the leader thought or how he felt, this was the only option forward.

Is it your sense that he really would—I mean, he needed this.Why did he need it?What were the stakes for Leader McConnell at this moment?

Well, we had spent considerable time and resources and everything to move this forward.The president was relying on it.We had gone through the whole hearings with Blasey Ford, and to stop now would have been pretty darn tough.And knowing that, I think his concern, and frankly all of our concern, was if this is successful with regard to the allegation itself—now, there could have been other reasons to deny him saying, “Hey, your performance before the committee shows that you didn't and wouldn’t have the independence that's necessary.”

But like I said, his record indicated otherwise.But with regard to the allegation, I think all of us were concerned.And I still believe that had he been denied, had the vote gone the other way, that we would be in strange new territory where an uncorroborated allegation from as far as 35 years before could disqualify somebody.That a mere allegation without any corroboration, could. .And that's not a place we want to be in.I think all of us felt that way.

The Long-Term Effects of Politicizing the Courts

The vote, of course, is as close as it can be.We’ll talk to Sen. Collins later today about her role in that.The question for you, I think, is you're leaving; you've watched partisanship really take a hold in some way, and division take a hold of the Congress and now maybe even the Supreme Court.There are people who are very worried that Kavanaugh manifests in some ways a kind of political side, even if he didn't mean to, a political side that maybe he carries onto the bench.And that the court itself is less sacred in some ways than it has been in the past.What are your thoughts about that, in a big way?

Well, obviously that's a concern of mine.We can't have partisanship on the court, and I was concerned about his performance in the committee.But like I said, when all else fails, you look at the record; you look at how somebody has performed in a previous position.And when you're on the D.C. Circuit, you're faced with a lot of issues that really butt up against positions, policy positions that people—your friends, colleagues, people in your party, if you claim a party affiliation—have taken.And he never exhibited any political instincts that we could tell on the court, on the D.C. Circuit Court.

I mean, you look at that, and you think that's what is more relevant, I think, than just about anything is his record, a decade-long record.So I felt good about that.I think that advice and consent, that's a powerful sword that we wield here in the Senate, and we ought to be very careful not to put partisans on the court.But I think his record had demonstrated that he wouldn’t be that way.

He wrote the column in The Wall Street Journal talking about that.That really didn't have an effect on me as much as looking back on his record and talking to his colleagues, because at some point, in 10 years, you're going to be faced with some cases that you could be right or you could be political on, and I couldn’t see evidence that he’d taken the political road at any point.

Let me ask these guys what we've missed.Mike, what do you think?

Maybe two.After Scalia’s death, when Leader McConnell’s trying to hold the caucus together to not hear a nominee, how does he communicate to you, to the other members of the caucus, that he wants to keep you in line?What are you hearing from him and from the leadership?

Well, the leader at that time worked through Chuck Grassley on the committee, and it was basically the committee.We need to stick together and all say that we’ll only consider this after the election, and the committee did.So Leader McConnell really communicated that through the committee, although this was his deal.It didn't originate with Grassley and the committee.And I don't remember if it was spoken about at one of the lunches; it probably was.And he was, Leader McConnell, was pretty firm on this.This is what he was going to do.And I think if I or any member of the committee had said, “No, we want to hear him,” and some of us did later, it wouldn’t have mattered.He’d made the decision, and he controls the floor.The leadership controls the floor.

My last one. Just to go back to that first day of the hearings with the protesters, with the Democratic senators having their statements, when you're sitting there, what is the message that you get about where the country is about the polarization about the Supreme Court, about the whole process, confirmation process?What are you thinking as you're sitting there watching that spectacle?

Well, as I watched that I knew this was going to be a barn burner.I mean, this was going to be a tough one.This was the swing vote.And I knew that it would be big.The first couple days of the hearing just confirmed that.And it was until the end.

Anything else we missed?Gabrielle, we OK?

Yeah. Just when you left the Judiciary Committee after the vote and went to Sen. McConnell’s office, can you tell us a little bit about that?

This is after the vote to advance?

Yes.

Yeah. After we voted to advance the nomination based on the agreement that we would have an FBI investigation, we went to Leader McConnell’s office—myself, Susan Collins, Lisa Murkowski, and many members of the Judiciary Committee—and then tried to set parameters for the investigation.We wanted to make sure, obviously, that the principals would be interviewed, including Mark Judge, and miraculously, they said, “Yeah, we can do that.”

Why miraculously?

Well, we’d been told all week that no… he wouldn’t offer anything substantive and it wouldn’t help, we couldn’t do that.But all of a sudden we could.We did agree that it would be those who had actual knowledge of what went on in the two incidences, not the next level, which would have been, I guess, in legal terms, hearsay.I had hoped that we would have had an investigation that would have been broader and sooner.

But given where we were, we just wanted it to be thorough with regard to those who had been identified.And I do think it was.I wish the country—although I don’t want to get into the habit, and we shouldn’t get into the habit, of making background checks that are done by the FBI public.It’s not a good thing.But in many ways I wish the country could have read this report.I think they would have felt better about it.It was thorough with regard to the people that it interviewed, and it shed some light on what may or may not have happened there.

So I felt in the end we were in a better place than we were before.Maybe not much better, but in a better place.

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