Friday, November 30, 2018

Jeff Flake’s Sad Exit

Jeff Flake’s Sad Exit

He blocks judicial nominees in a futile anti-Trump gesture.

Usually when Congress cancels a committee meeting the country misses nothing more than grandstanding. But this week the Senate Judiciary Committee had to halt progress on confirming talented judges thanks to GOP Senator Jeff Flake of Arizona.

The committee was scheduled to meet Thursday to move some 20 judicial nominees. But Mr. Flake has said he will block all judicial nominees until he receives a vote on a bill that would insulate Robert Mueller’s Russia investigation from normal political accountability. The GOP’s one-seat majority on Judiciary means the party can’t report judges out of committee with a favorable recommendation without Mr. Flake’s vote.

Mr. Flake tried to bring up the Mueller bill on Wednesday but Republicans objected. Then he voted against a procedural motion to move forward on district judge nominee Thomas Farr, which meant Vice President Mike Pence had to break the 50-50 tie on the Senate floor. Judiciary canceled the committee meeting on Wednesday evening.

The judges who won’t move out of committee include six circuit nominees, not least Bridget Bade for the Ninth Circuit Court of Appeals. She’s from Arizona. Ms. Bade was nominated in August, but now she may have to wait until January for the committee’s blessing. She probably isn’t feeling the hometown camaraderie from Mr. Flake.

Mr. 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.

The legislation violates the Constitution because it would prevent the special counsel from being fired except by a Senate-confirmed Justice Department official for "good cause." But Article II allows the President to fire inferior officers of the executive branch at will.

Defenders point to the Supreme Court’s 1988 Morrison v. Olson ruling that upheld the late and unlamented independent counsel statute. But Congress let that law expire because it had become a constitutional travesty, as Antonin Scalia so memorably wrote in dissent ("this wolf comes as a wolf"). Justice Brett Kavanaugh said in 2016 that he thought Morrison should be overturned.

Even worse is a provision that would let Mr. Mueller appeal his dismissal to a federal judge. Making Article III judges arbiters of the President’s appointment power undermines the separation of powers and dilutes political accountability. There is no such judicial power in the Constitution unless a President acts unlawfully, and firing Mr. Mueller would be a political mistake but it wouldn’t be unlawful.

Perhaps Mr. Flake, who didn’t run for re-election, is making a political statement in advance of the primary run he says he may make against Mr. Trump in 2020 in New Hampshire. But Republicans are likely to notice that he put his personal feelings about Mr. Trump above confirming judges that any GOP President would be proud to nominate.

Recall that John McCain scuttled the Republican effort to repeal ObamaCare, in part because of his personal distaste for the President. But in the long run he will have harmed the institution he spent his career trying to protect: the military, which is squeezed by unreformed health-care entitlements. Mr. Flake’s self-indulgence is another example of how hostility to Mr. Trump has caused so many people to lose their own political bearings.


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