Sen. Jeff Flake (R–Ariz.) is earning the ire of partisans on both the right and the left for remarks he made on the Senate floor Wednesday afternoon. Flake blasted his fellow senators and President Donald Trump for the handling of Brett Kavanaugh's confirmation process, but also declined to take a firm position on any of the increasingly fraught questions swirling around the Supreme Court nominee.
Some of that criticism is warranted. After all, Flake is one of only 100 people in America with the power to approve or block Kavanaugh's nomination. Even that calculation understates Flake's potential influence over the outcome of this process: given the current hyper-partisan environment and the narrow 51-49 Republican majority in the Senate, Flake is a swing vote in both the crucial Senate Judiciary Committee and the chamber as a whole.
But it's also difficult not to sympathize with Flake's assessment of the situation. He is retiring at the end of the current term, and therefore has little to gain from playing politics or trying to appear above the partisan fray. He's free to be the voice of the people—or perhaps the Senate's conscience, if you prefer—and the vox populi is frustrated, confused, and a little angry.
Flake said he's unwilling to believe that Christine Blasey Ford, who has accused Kavanaugh of attempted to rape her at a high school party in 1983, is "is part of some kind of vast conspiracy from start to finish to smear Judge Kavanaugh," but that she should be heard (and she will be, Thursday, by the Senate Judiciary Committee). Flake also said that he refuses to believe that her claims of sexual assault are invalid because she did not report the assault immediately after it happened—something Trump tweeted earlier this week.
"How uninformed and uncaring do you have to be to say things like that, much less believe them?" asked Flake. "Do we have any idea what kind of message that sends, especially to young women? How many times do we have to marginalize and ignore women before we learn that important lesson?"
On the other hand, Flake said he does not believe that Kavanaugh "is some kind of serial sexual predator, as has been alleged by some on the left." (Flake did not comment on the most recent allegations against Kavanaugh, and told a reporter that he did not have time to review those new allegations before his floor speech Wednesday)
Flake lamented that tather than trying to get to the truth, both sides have rushed to strip both Kavanaugh and Ford of their humanity, turning both into "grotesque caricatures" of who they really are.
"We think that our ideological struggle is more important than their humanity," he said, "because we are so practiced at dehumanizing people that we have also dehumanized ourselves."
Flake's assessment of the circus that surrounds Kavanaugh's confirmation process seems pretty reasonable. Even by modern political standards, and even with the ideological composition of the Supreme Court hanging in the balance, the vitriol shown by both right and left in the past two weeks has been stunning.
There has been almost no consideration of whether Kavanaugh would make a good justice; no consideration of his judicial record or his legal views. His confirmation now seems to hinge on whether you believe Ford's accusations (and now the accusations brought by two other women) or Kavanaugh's denials—and "believe" is indeed the right word here, because the frustrating lack of concrete evidence has turned that question into an article of partisan faith.
It's also right, I think, to feel disappointed that Flake did not take the opportunity to change the process he's decrying, or even attempt to do so.
He need not take a position on Kavanaugh's nomination—indeed, he's right to say he wants to hear the testimony of both Ford and Kavanaugh with an open mind on Thursday—but he could have said that he would not support the decision to vote on Kavanaugh as soon as Friday. He could have said he wanted additional time to allow Kavanaugh's other accusers to come forward and have their claims properly vetted.
It is unlikely that Thursday's hearing will definitively prove Ford or Kavanagh to be a liar. And the Supreme Court confirmation process is a political process, not a court of law where due process matters and accusations must be proven beyond a reasonable doubt. Together, those two facts leave all of us with another frustrating reality: there's likely no outcome of the Kavanaugh confirmation process that will be accepted as the "right" one.
"However this vote goes, I'm confident in saying that it will forever be steeped in doubt," Flake said. "This doubt is the only thing of which I am confident."
The burden of sorting all this out falls to Flake and his fellow senators. It is important to call out the "toxic political culture" that's only been worsened by the past two weeks of Kavanaugh drama, as Flake did Wednesday. What he does on Thursday and Friday will matter even more.