The FRONTLINE Interviews
Jeff Flake
Second Interview with 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. Senator 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 Gabrielle Schonder on October 28, 2020. It has been edited for clarity and length. You can see an earlier interview with Jeff Flake here.
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The Death of Ruth Bader Ginsburg
The night of Ruth Bader Ginsburg’s death.That news breaks on a Friday evening, and I know you’re not in Washington any longer, but Washington really sort of erupts, and a lot of political observers are pretty shocked by that news.Can you help me understand the significance of that moment? ...
When I heard the news that Ruth Bader Ginsburg died, I thought, boy, what a time.Just a couple of months before the election, I thought, this is going to upend the election.If this is anything like the [Brett] Kavanaugh hearing, it will upend the election.It’s too early to tell which way it will break, but I definitely thought that this was the October surprise, just a few weeks before October.
Certainly everyone sort of knew that she had faced an incredible amount of health [issues] and very grave diagnoses, right?And in some ways, the news isn’t very shocking, but certainly, as you point out, the timing is probably what just caught the Washington establishment off-guard.
I mean, people—she had been ill for a while; she’d been in and out of the hospital.But she seemed—every time she went into the hospital she’d be back out, and people say she was fine; she was working up until her final days.So, I just don’t know many that had expected this to happen.So it caught everybody off-guard.And, you know, obviously, I think Republicans in the Senate had been anticipating something like this perhaps happening.That's why, within an hour, I believe, Mitch McConnell had already said, “We’re moving ahead.”
Can you tell me what he said? Can you help me understand what he does next?
Well, I think they let a moment pass, at least.And certainly every Republican, I believe, was good about praising her legacy, and they were careful to do that, and I think that was genuinely felt by most of my colleagues.But it was pretty quickly before—I think Mitch McConnell wanted to get something out saying, “We’re moving ahead,” before people started putting statements out that were made in 2016, and to make it even more difficult for Republicans to say, “We’re moving ahead.” So I think he wanted to get ahead of that game, certainly, and he did.
McConnell’s Focus on the Courts
[What] was at stake for the majority leader in this moment?
For Mitch McConnell, the court is everything: the federal courts, I should say; in particular, the Supreme Court.This, he feels, is his legacy. …I was in the Senate for two years during President Trump’s presidency, and Mitch McConnell—Mitch McConnell had a singular focus: We’re going to make sure that we fill vacancies; we’re going to make sure we leave a legacy.And more than 200 federal judges have been confirmed just in the past three and a half years.
Yeah, I imagine you know that motivation very personally.
I've been on the Judiciary Committee.That was extremely important.And we only had a one-person majority on the Judiciary Committee, so it was felt.And I should say, a lot of people don't understand how it works behind the scenes.Many people—and kind of the folklore on the left is that everybody that the president wanted was approved.That's not the case.And I should back up even further.The president really had no preferences other than satisfying the conservative base.He didn't know any of these judges that were possible nominees.You know, that was left up to Don McGahn, the Federalist Society and others who had a better idea.And during my time in the Senate, there were often people put forward before nomination, kind of as a trial balloon.They would send somebody by my office.Sometimes they were a little too young.Obviously Mitch McConnell wanted to appoint young, conservative jurists.And I think every conservative, every Republican wanted that.Democrats will want the opposite.Sometimes it went a little too far, I have to say, and I had a few people come to me in my office who the president wanted or the White House counsel wanted that we just called them and said, "No, not going to happen."
So it wasn't the case that everybody put forward by the White House was considered by the Senate.But obviously, there were a lot of young conservatives approved.
What did it tell you about Mitch McConnell and the—I just envision these marching figures coming towards the Senate, going towards your office.What did it tell you about the strategy? What did it tell you about what he—
Well, I mean, this is an important part of government.I mean, it's the third branch, and conservatives have felt for a while, myself included, that we've needed a rebalancing of the courts, particularly if you're from Arizona.I mean, we're in the 9th Circuit, and that's a very liberal circuit and a very unwieldy circuit.I mean, it's big; it's cumbersome.You know, it's, what, 31 judges sit on it.They rarely meet together.It's just, you know—it needs to be broken up; it needs to be changed.And, you know, the entire judiciary, I think Republicans have recognized, needed a rebalance.I think that we've seen that over the past couple years.
The Kavanaugh Nomination and Hearings
… I wonder if I can now jump to the [Brett] Kavanaugh nomination, without giving you too much PTSD, but I appreciate you sort of thinking through this moment again with us.From the very beginning of that nomination process, there was so much outrage about this figure.I think of Senator [Kamala] Harris, for instance, interrupting the chair in the first 30 seconds of the beginning of the hearings.Things seemed to be so much about this partisanship battle, and we weren't even discussing, sort of, the merits of the judge's qualifications.Why were these nominations now full-on political battles?
Well, after Neil Gorsuch was nominated and confirmed, they knew that the next justice would really tip the balance.And so Judge Gorsuch, you know, kept its stasis, because he replaced another conservative.But then Anthony Kennedy was often a swing vote, and he would be replaced by a more solid conservative.So even before any of the allegations came from [Christine] Blasey Ford, there was not one Democrat, other than Joe Manchin, who was likely to support this nominee—certainly none on the Judiciary Committee.And so when we had the regular hearings, before any allegation came up, it was full-on battle, and there was no support on the Democratic side for Judge Kavanaugh.
And it made me think, too, unfortunately, putting the allegations aside that came later, had Kavanaugh been nominated in the 1990s, just a decade or two before, he would have received probably 90 votes.Ruth Bader Ginsburg did, and she was very much seen as a liberal judge.But that's just what the Senate did.And it really changed.We don't need to go through all the history of it since 2003.So we knew this was going to be a pitched battle.But then the allegations came, and it was taken to a new level.
I wonder if you can sort of help us understand, if we can now fast-forward to almost the end of these hearings, what had changed.… When it was all over, and we were all sort of recovering from it, what do you think had changed fundamentally in all of these sort of different pockets within the parties, within the court itself?
Well, if it wasn't apparent before, that just set it out that—even before the allegations, and then the allegations added something at a whole new level—but it was known we were never going to have Democratic support for a Republican nominee.And the thought was—and we've unfortunately moved to a time when each party feels we're going to get this shot; it's going to be a partisan exercise; and we just need to go as far to our left or as far to our right as we can.That's not completely true, but that's kind of the sense now, because nobody's trying to persuade anybody anymore.You just try to use brute force and get somebody on the court.
You know, just a couple of years ago with Merrick Garland, that wasn't the case.He was very much a more mainstream pick, and President Obama felt that he was one that could receive Republican support.When that failed, I think that that kind of set the tone that was really cemented, you know, with the Kavanaugh hearings, and we've seen it play out since.
What do you think Mitch McConnell knew about the moment at the end of those hearings, the end of the Kavanaugh hearings?
Well, he just thought, we did it; we pushed him through.And that was—let me tell you, on the Republican side, there was a lot of anger about how the allegations were handled by the Democrats and by those particularly on the Judiciary Committee and how they teamed up with outside groups.The timing of the revelations and whatnot were really meant to simply delay it enough, where it would become untenable.And so a lot of it was, you know, “Hey, we beat them, finally.” And they threw their best.So there was, in my view on this, nobody came out looking very good.Certainly the way the Democrats handled those allegations was quite untoward, frankly, at least—I'm not putting every Democrat in that category, but the way that came forward.By the same token, on the Republican side, the failure to assure the country and the institution of the Senate that we would go through due—that we would do due diligence on this, that we would go through a process that the Senate could be proud of.In the end, I didn't feel that we had, prior to the FBI investigation.
I thought to myself as you were answering that question, just sort of another tarnished institution. …
Yeah.I mean, the Senate has taken its knocks, in no small part in how it's dealt with judicial nominations like this, dating back to really, well, frankly, in the '80s, the way Judge [Robert] Bork was treated, and then kind of the circus that became the Clarence Thomas hearings.And then in 2003, when Democrats—who were in a position to do this, to basically filibuster the president's executive calendar, including nominees, that just set an arms race up that continued until the filibuster was completely gotten rid of, in terms of the president's executive calendar.
But the court, the high court has always been kind of above reproach.And even when people like Clarence Thomas, who was a very controversial nominee, got on the court, if there were disagreements behind the scenes or a feeling that he didn't deserve to be there, the country didn't see it, and the other institutions of government didn't see it.It's a collegial environment.It really has to be on the Supreme Court.And gratefully, that has remained.As controversial as the Kavanaugh nominations were, there's no evidence that he has been treated differently on the high court, and that's much to their credit.
I really was not pleased to see how the president has handled these nominees, in terms of making it look political.Even if a nominee was controversial, like Clarence Thomas or others before, at least the White House tried to play down the political aspect of it.This president has played it up.And when you saw, starting with Neil Gorsuch, a ceremony at the White House afterwards, that—that's unusual.That's really not done.They're just sworn in at the court.And then with Kavanaugh, you know, more of a celebration-type environment at the White House afterwards.It was really disconcerting to me.And then we saw the same with Amy Coney Barrett.And I'm not blaming the justices on this.They were—the president appointed them, and it's proper for them to do, I think, what the president asks.But the president shouldn't ask this kind of thing.And it's not good for the country, for this to be seen as a political win, and that's kind of what it's turned into.
The Garland and Barrett Nominations
… Let me ask you a little bit about Garland, only in the sense of when Senator McConnell, when the majority leader makes the announcement after Ginsburg's death that they're going to—the Senate will hold hearings on a nominee. Help me understand, sort of, the hypocrisy of that announcement, in light of what had happened to Judge Garland.
Well, I think that Mitch McConnell and most Senate Republicans, myself included, look back at precedent.We could say, for a fact, that you'd have to go back to 1888 to find the same scenario with somebody pushed through.I came to regret supporting that letter or the move of the Judiciary Committee pretty quickly.And I in fact met with Judge Garland in my office, had conversations with him.And then later on, by the time the fall came of 2017, I was actually working with the White House, with President Obama, to organize some move during the lame-duck session to have Merrick Garland approved.He had, I guess, President Obama had an agreement with Hillary Clinton, who virtually all of us thought would be the next president by that stage, that she would be OK with President Obama's pick to be approved in a lame-duck session.I believe she felt she would probably have another nominee or two and that, you know, she didn't want to spend her first three months in office with a fight over a Supreme Court nominee.
So I was certainly ready to forward that nomination in the Judiciary Committee and had the support of some of my colleagues to do so.And I believe Mitch McConnell would have supported it, because a feeling among conservatives, Republicans, is that anybody Hillary Clinton would name would be to the left of Merrick Garland.So I came to realize that was a mistake for us to do simply because of the knock-on effects, what would happen after.And we saw that, as well, Republicans, you know, this year being put in a position to basically disavow what they said in 2016.And you can dress it up however you want, in terms of who's in the majority and whatever else, but all the public heard was, "The next president should decide."And that being the case, I felt it would have been appropriate to wait.It just—we've got to protect the institution of the Senate a little better than we have.
What's the lesson of this moment that Mitch McConnell leaves us with?
Well, I mean, I think it's too early to tell that.My feeling is that pushing through with the Barrett nomination—when I say this, I'm not saying anything about her qualifications.She's qualified.I was glad to support her for the position she held on the circuit court.She'll be a great jurist, and I think she'll be independent of the president and every other institution of government.She'll be a great jurist.But I felt that Republicans shouldn't move through.And it's too early to tell how this will play later.It may well be that Republicans lose the Senate next week, and the balance could have been tipped by the decision to move ahead.Politically, for Republicans, is it better to have, you know—to pad an already conservative Supreme Court right now or have control of the Senate for the next two years?You know, I question that.
So I think it's too early.And we'll never know what impact this move had politically on the elections coming up.So—but right now, Mitch McConnell certainly feels good.And there are some who suggest that if he knew that this would tip the balance politically, and Republicans would lose the Senate for two years, still worth it in his book.Still worth it.
Rubber-Stamp Hearings
… I want to ask you a little bit about what these hearings, having now sort of witnessed the full hearings here, what they look like now.Why are we doing them?… You referenced Bork earlier.At least in Bork there was an interest in, sort of, for lack of a better word, like, litigating his own personal views and having real discourse about that from both sides.There did not seem to be an interest in swaying Democrats this time around, not that that would have been a reality anymore.But this kind of rubber stamping of judges does seem to be a little bit different than what the institution and what the process is supposed to sort of oversee and manage.I'm curious [about] your take on it.
Yeah, definitely. I would like to see them be a little more forthcoming, but I completely understand why they aren't.And this is, you know, both Republican-nominated judges and Democratic-nominated judges act the same.They call it the "Ginsburg Rule."For not answering questions.So yeah, I think, I mean, you can still glean some things in statements that they make beforehand.Some of the questions that they answer, you can glean some things.But it's not as helpful as it perhaps would have been a couple of decades ago.But I don't think there's any way we'll return to that time.
Say as little as possible, give as little to the other side.And this goes back to Thomas, right?I mean, it does in the sense of, yeah, just withhold those views.
Yeah, definitely.It's not going to change.It's not going to change.
… I do want to ask you about the majority leader's legacy on the court and whether this particular nomination kind of encompasses, in many ways, the life's work that we've been talking about, his long view of the courts.Can you help me sort of understand the win here and how significant it is to him?
Well, he succeeded in establishing a conservative court for the next couple of decades, at least.That's an accomplishment, if you look at that alone.I think in the process, you know, we've damaged another institution, the Senate, and I don't think that it's a good trade overall.But, you know, the blame can't be placed squarely on Mitch McConnell's shoulders.This has to be shared by both parties, in the way that it has been politicized.Democrats in the early 2000s didn't consider George W. Bush a legitimate president and so didn't feel that they were obligated to forward his executive calendar for an up-or-down vote.And then, you know, we set off that arms race, and it never ended until the filibuster was gone.And that's a problem.That filibuster was never used, other than back with Abe Fortas ...But the fact that we always knew that you could, that any senator could require 60 votes, I think, provided some guardrails around the nominees that a president could put forward.
So I don't think we're in a good place there.But once you get rid of things like a filibuster, you're just not going to get it back.And that's my fear with a legislative filibuster, too.This will make it more likely.Almost certain that if Democrats take control of the Senate, the legislative filibuster is gone.And that imperils the institution of the Senate and the Congress as a whole, and other institutions as well.
So overall, it's a mixed legacy.When you force, just by the brute power that you have, you can do it.Nobody questions the constitutionality of what Republicans just did, but in the end, will it have been worth it?I don't know.
A Politicized Court
Yeah, let me ask you about that, especially the other party.Senator [Sheldon] Whitehouse specifically sort of says, "You all are going to rue the day."He does it in the hearings.And it reminded us of a young Senator McConnell's floor speech after the Bork hearings.I sort of wonder what has now been kicked off in that arms race that we talked about earlier.
Yeah.Well, ultimately, the worst would be that the court would be packed.Democrats would simply say, "We're going to even out the court."There's going to be incredible pressure from the progressive base in the Democratic Party to do just that.I don't think that the Senate will go there.Obviously, if Joe Biden wins the election, Joe Biden doesn't want to do this.He's said as much.And he knows that just leads to further escalation.But that—you know, that doesn't stop the base from pushing for it, and they'll push for it strongly.
But, you know, what provides a break on what any party does when they get the majority is the knowledge that midterms are never more than two years ago.And an overreach like this—packing the court—that wasn't popular when FDR did it or tried to do it will come back to bite you, and you'll lose the majority two years from now.That's going to weigh heavily on those who are in a position to make decisions on this.The base of the party will push for it regardless; we just have to understand that.But those in positions of power, I think, will feel differently.
It sounds like you're saying, when would this end, that once you kick off an arms race—you know?
Oh, definitely, definitely.And that's why I worry, you know, what we've come to is, by getting rid of the filibuster as it pertains to nominees, we make it far more likely we get rid of the filibuster on legislation.And that would be a terrible thing.It's popular when you're in the House of Representatives, and I was there for 12 years, to be very frustrated with the Senate.It's the graveyard of all good ideas; they never do anything; just get rid of the filibuster; be more like us in the House.Many of my colleagues took that position; I never did.I always valued the filibuster in the Senate.As a conservative who wants limited government, gridlock is usually great.It's better than the alternative of moving things too quickly.And I fear we're entering a cycle or we're being cemented in a cycle where we simply try to get the majority, push something through by brute force, and hope that we don't lose the majority and the other party tries to undo it.And, you know, we see a version of that, I guess, in these nominations as well. …
The Barrett Swearing-In Ceremony
I wonder if I could take you really quickly to the swearing-in ceremony that we witnessed earlier in the week.Could you help me understand sort of the symbolism of doing that a) in record time, and then—I mean, the entire process in record time—but then the idea that we're doing it the week before an election?
Well, Mitch McConnell had said, and Republicans had said, "We want to get this done before the election."So as soon as confirmation in the Senate happens, it's normally pretty quick that they're sworn in at the court.What you haven't had before until President Trump is a detour to the White House for a mock swearing-in ceremony there that really, in my view, looked far too political.But that, I think—I think there was an effort there certainly to rally the base, to remind the base: "This is what we said we'd do, and this is what we're doing."And the president obviously is, if he does anything, it's, you know, drill down on the base, and he wanted to remind them that he'd made good on these promises.And that was the reason for it.Whether or not that was effective is too soon to tell, in terms of the election.
We're now in this part of the story where the cycle that we've been talking about is going to be difficult to end.We can't really put the genie back in the bottle, in some ways, on how these hearings go.
Right.It only escalates.And that was my concern.That's why I favored—even though I want a more conservative court, even though I understand the constitutionality of moving ahead, even if it's six weeks before the election, you know, where does it lead?And is it worth it, in the end, when you consider the impact on institutions like the Senate and the Supreme Court?And I'm afraid we're in just a period of escalation.
… And when you hear that Justice Barrett is the first nominee in 151 years to be confirmed on a party-line vote or without winning anybody else from the other side over, what does that say to you?
Well, that's unfortunate.It really is.At least with Kavanaugh, there was the Joe Manchin vote, so not completely partisan.Pretty close.But, I mean, people like Lindsey Graham will point to the 1990s, where he supported [Elena] Kagan, he supported [Sonia] Sotomayor.And 1990s, early 2000s.And, you know, there's hypocrisy on both sides here, and Republicans are justified in pointing that out. …
Two other questions, which are both about that moment when then-Judge Barrett is nominated at the White House, and there's a lot of people who are gathered there, and you probably know a lot of them.And a lot of them go all the way back to Bork, to working to return a conservative balance or add conservative judges.How important was that moment to them, to the balance of the court, to everybody who's there, who had worked?How important was that seat?
Well, the Barrett nomination really culminated the efforts of a lot of conservatives to have not just a conservative court, but a solidly conservative court—6-3, if you will.And that's something that really can't be upended for a while.So it was a big moment for conservatives, for Republicans.That was really the culmination of a lot of efforts.And like I said, nobody knew the time—what the timing of the Ginsburg passing would be.I think a lot of people were caught off-guard, but once it happened, within an hour, Mitch McConnell was saying, "We're moving ahead," and they did.
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