If you thought everybody hated Jeff Flake before, check out what they're saying now that the lame-duck Arizona senator is blocking judicial confirmations until he gets a floor vote on the bipartisan "Special Counsel Independence and Integrity Act," which passed the Senate Judiciary Committee (upon which Flake sits) 14–7 in April but has been stymied since by Majority Leader Mitch McConnell.
"Jeff Flake's Sad Exit," runs the headline on The Wall Street Journal's editorial. The paper's argument: "Flake's stunt will have zero effect on President Trump or Mr. Mueller, and he's compromising a substantive principle to make a futile political gesture. Mr. Flake is hurting the cause of confirming conservative judges who would enforce the Constitution in the name of a bill that is unconstitutional."
Is the Mueller-protection act truly unconstitutional? The best answer to that may be that it would be "vulnerable to constitutional challenge" on separation-of-powers grounds, because by giving special counsels—which currently are allowed to exist not by statute but through internal Justice Department regulations—the ability to appeal their firings to the U.S. District Court in Washington, D.C., the bill would transfer some executive branch authority from the president to this awkwardly powerful post. The relevant Supreme Court precedent, 1988's Morrison v. Olson, is one of the more infamous rulings of the past few decades, known now mostly for Antonin Scalia's fiery and solitary dissent, which would likely be the argument the current SCOTUS finds most persuasive.
Is that constitutional vulnerability sufficient cause to block a floor vote? Sen. Mike Lee (R–Utah), one of the more constitutionally grounded members of the body, says so vehemently. But Commentary's Noah Rothman, in a piece for NBC News, makes a persuasive case that it's all more complicated than that. "The naïve might insist that this is an entirely good faith intra-party debate over the constitutionality of the bill," Rothman writes. However: "The unsatisfying fact is that a careless strike at Trump by Congress would only make the crisis it is trying to prevent more likely."
Fact is, the legislative branch under GOP rule specializes in three things: not voting on bills, not conducting meaningful oversight of the executive branch, and confirming as many judges as they can while the going's still good. As lame-duck Sen. Bob Corker (R–Tenn.) memorably pointed out in June, his Republican colleagues are terrified of poking the bear, meaning the erratic, anger-prone fellow in the White House. And as has been pointed out repeatedly by the most libertarian members of each chamber—Justin Amash (R–Mich.) in the House, Rand Paul (R–Ky.) in the Senate—the other governing fear is of attaching names to actual votes.
"People in Congress are protected from voting the wrong way," Amash told me a couple years back. "Everything's take-it-or-leave-it, all or nothing. It makes it harder to distinguish among the members of Congress—who's a good congressman and who's a bad congressman—because it's all just a jumble."
This insight may get closer to the true objections to Flake's bill. The Journal is correct to point out that the legislation is a non-starter, because even if it was voted on and passed, lame duck House Speaker Paul Ryan (R–Wisc.) would not take it up; the constitutional question would be moot. But the names of those Republicans who dared poke the bear would be written in neon lights at 1600 Pennsylvania Avenue. And should Trump's situation continue to deteriorate, or if he ends up firing Robert Mueller, an on-the-record vote against protecting the special counsel may prove politically hazardous.
Flake's gambit not only asks his Republican colleagues to do something they hate but also prevents them from doing something they love—confirm judges. I attended a D.C. fundraiser for Flake in 2017 a week before he announced that he wouldn't seek re-election, and the special guest star may surprise you: none other than Mitch McConnell. "We're in the personnel business," the majority leader said at the outset of his remarks. "There's over 1,200 presidential appointments that have to be confirmed in the Senate. And the most important ones, obviously, are the…courts….One of the most important things that President Trump will be able to do to change America is putting young, Gorsuch-like people in the courts. And right in the middle of the confirmation process is Jeff Flake and his colleagues on the Judiciary Committee. He's been a solid supporter." That was the entirety of McConnell's testimonial.
This is why Republicans are pissed. "Not productive," says Sen. Ted Cruz (R–Texas). "Flake is a selfish narcissist," snorts Mike Huckabee. Meanwhile, his vote-switch this week from "no" to "present" on controversial Eighth Circuit Court of Appeals nominee Jonathan Kobes is producing headlines in the lefty press like "Jeff Flake caves again."