Arizona’s Senator Jeff Flake joined me this AM to discuss day two of the hearings on the nomination of Judge Gorsuch to the U.S. Supreme Court:
HH: Joined now by United States Senator Jeff Flake from the great state of Arizona. Senator Flake, always a pleasure to have you, thank you for joining me.
JF: Hey, thanks for having me on.
HH: Let me begin, before I turn over to the Gorsuch hearings, by just asking you a little bit about the American Health Care Act. What’s your understanding if it passes Thursday? Is it going to go directly to the floor on the Senate?
JF: Yes, I think it’ll go to the floor pretty quickly, but we do have a process in the Senate since it is part of budget reconciliation. You know, amendments will be allowed, so it’ll, nothing ever goes quickly in the Senate. Let me put it that way.
HH: Well, it seems to me that they’ve left on the table opportunities to use the tax code, and I understand the reconciliation rules and the Byrd rules. But if we want health care reform, we want medical malpractice reform, we want interstate competition, amendments to the tax code can get that done by dis-incentivizing certain kinds of policies. Are you intending to be active and aggressive in amending from the floor, Senator Flake?
JF: Yes. We’ll have some amendments, and I’ve seen what you’ve written on the subject. That’s a very innovative way to get more on the table than could be otherwise under reconciliation by using the tax code.
HH: Well, I hope you guys, I’m glad to hear that. Now let’s move to the, I watched your opening statement yesterday. It was one of the coherent ones. There were a lot that were not coherent, and so I compliment you. I understand that within the Senate, there are courtesies, but I’d like to get your comments on a couple of your colleagues’ comments, particularly ranking minority member Dianne Feinstein said this, cut number 8:
DF: If these judgments when combined do not constitute super precedent, I don’t know what does.
HH: Now Jeff Flake, there is no such thing. I’ve been teaching Con Law since 1995. There are no super precedents. If you tested on a bar exam and you say that, you’ll flunk. How do you sit there when someone invents a new category of cases?
JF: I found that a little odd as well, so no. Super precedent, that’s something that the courts are forced to recognize. And whatever else, it didn’t make much sense to me. So no, I don’t know how to answer that.
HH: Okay, I’ll let you go. It didn’t, I’ll bang on that a little bit later. Let’s go to the 9th Circuit issue. Yesterday, on Morning Joe, Senator Blumenthal made the argument that Judge Gorsuch is under an obligation to denounce the proposition that the 9th Circuit be broken up, because President Trump attacked the 9th Circuit. I pointed out that you and Senator McCain and others like Doug Ducey have been supporting a breakup of the 9th Circuit long before President Trump criticized the 9th Circuit, and that Senator Blumenthal, that it would be inappropriate for Judge Gorsuch to comment on that proposal. What do you think?
JF: That’s right. In fact, we got on the 9th Circuit judges themselves for taking a position contrary to legislation to split it up. That’s not their position to take. That’s the position of the legislature. And if they want to go back to when this all started, there was legislation introduced in 1941 to break up the 9th Circuit. So this has been around a little before Trump.
HH: And so I just, I think they’re trying to set up hurdles for him to trip over, where we know the rules of judicial ethics and past confirmation prohibit him from going. Is that part of the job of the majority to protect the judge from charges that he’s dodging questions which he literally cannot answer without violating the code of judicial conduct?
JF: Yes, and I think you’ll see a number of us try to make those points today. Today, my colleagues and I will each have half an hour to question the judge. So you’re going to hear, if you thought yesterday in the opening statements was interesting, wait until today. And I assume we’re going to have to step in a number of times.
HH: Well, I hope you listen closely. I have heard in the past the much, I think it’s terrible when a religious test is introduced. It’s prohibited specifically by Article VI of the Constitution, but people try to get into the religious views of judges. Are you on the watchtower against that, Jeff Flake?
JF: Yes. You bet, you bet. I like the positions obviously what the judge has written in concurrence and in dissent with regard to religious liberty. I think his view is correct. But to try to go after a judge for his own religious beliefs and try to put him on the witness stand that way is not appropriate. It simply isn’t.
HH: Now there will be arguments heard in the Supreme Court on April the 19th in the Trinity Lutheran Case, which is probably the most important Free Exercise case in 30 years. I don’t know how he comments on anything having to do with the 1st Amendment with this case pending, because he’s going to participate in that. Is that your view of it, that he ought to stay away from 1st Amendment issues?
JF: Well, any, well, anything that is likely to be something that he will need to rule on, he can’t rightly comment on. And I’m sure that he has considered these things in preparation. And he’s a very bright guy. And I think he’ll know what his boundaries are.
HH: That came across yesterday, didn’t it?
JF: It did. Sure did.
HH: It sure did. It was a remarkable performance. It was compact, eloquent and inspiring when he finally got to speak. Let’s talk about Trans-American Trucking, Trans-Am Trucking. I went and read the dissent that he authored. It came up repeatedly from Democrats. They’re going to make it sound like he dragged this poor trucker out of his cabin and left him in the snow by the end of this thing. Are you prepared to deal with the specific dissents that judges inevitably come up with?
JF: Yeah, I mean, this, when he gave statistics yesterday about the number of times he’s been in the majority or the decisions of the court on which he sat have been unanimous, it was striking. I think it was 97% of the time there was a unanimous decision from that appellate court, and 99% of the time, he was with the majority. To try to paint him as an ideologue or somebody way out of the mainstream just isn’t going to fly. And I expect that to be raised, as well as you know, his position on specific cases.
HH: Now Senator Flake, Democrats face a dilemma. If they force a filibuster, they will oblige Republicans to invoke the Reid Rule, which means that the rules of the Senate can be changed mid-course as they did vis-à-vis the D.C. Circuit in 2013. If they went that way, would you support the use of the Reid Rule to lower the limit?
JF: I would. I would. I’ve always said that we, you know, to do that would simply return us to Senate precedent. It would return us, it would do du jour what was de facto prior to 2003 when nobody ever filibustered the President’s executive calendar. And so I would support that.
HH: All right, and do you think that it would be a mortal lock, to use the phrase of a Broadway musical, that the Republicans would indeed change the rules of the Senate vis-à-vis the Reid Rule if they confront a filibuster?
JF: I think so. I believe so. Now Leader McConnell rightly doesn’t talk about that. He says we’ll get him confirmed. But I think the Democrats know that, and most of them are loathe to go down that road, because the next pick will be seen as the Roe V. Wade candidate. It will be the one that shifts the balance of the Court, not just maintains the balance. And it’s, I know that there’s a lot of discussion going on in Democratic circles on which hill to fight on, and a lot of people not wanting to fight on this one.
HH: As I listened to the opening statements yesterday, though, I got the sense that they are going to be pushed by their base into a fruitless and ultimately unsuccessful fight on the filibuster now. And I’m actually happy about that, because I think the filibuster is extra-Constitution. I’ve always made that argument, but let’s move on to the question of other judges. There are 18 Circuit Court judges vacant, including some in your 9th Circuit. You’ve got district court judges in Arizona. When are we going to see some names, Senator Flake?
JF: Well, we have submitted names. So I know that senators are being encouraged to do that. So, and Don McGahn, the White House Counsel, has been active, as obviously the President has, in getting that process moved along. And I know Leader McConnell has been urging senators to move quickly, particularly with the district court judges where senators usually have the most say.
HH: All right, you are also on two other committees, and I’ll conclude with this. You’re on Senator Foreign Relations, which has State Department confirmation authority, and you are on Senate Energy and Natural Resources, which has Department of Interior confirmation authority. To me, the single most important non-high profile position in the government for economic growth is the director of the U.S. Fish and Wildlife Service, because they can sequester so much land, as well you know. Have you gotten any indication when we’ll get a nominee for U.S. Fish and Wildlife Service?
JF: We have not. This, the sub-cabinet folks, that’s moving rather slowly. So no, not yet.
HH: Have you got a candidate yourself you’re pushing anyone for?
JF: No, we have some personnel that we’ve been, that we’ve pushed forward, so…
HH: If you go get Tim Sandefur from the Goldwater Institute and put him over there, I’d be happy. How about over at the Department of State? Rex Tillerson has been, the hallways are empty. There’s nobody over there.
JF: Yeah, that’s been troubling. I have the Africa Subcommittee, and we’re trying to find out, you know, which direction we’re doing with some of the policy initiatives there. It’s been frustrating. So I think, I can’t imagine how frustrating it is for Rex Tillerson.
HH: Do you expect any nominations to be made before you go on recess? And if so, would you object to the President using the recess appointment power to put them in place?
JF: I think we can move through these. I think that the Democrats, you know, obviously, they’ve stretched out on the President’s cabinet as long as they could, but I hope that we don’t have to go down that road. My assumption is that they’ll allow us to move these nominees through more quickly now. So we’ll see.
HH: Let me conclude by asking you about the border fence. There’s a line item. There’s a big budget in the border fence in the OMB director’s numbers. What do you make of the border fence, Jeff Flake, and do you support the expenditure that is anticipated by the budget to construct the fence?
JF: Well, we’ll see what it looks like, obviously. In legislation I supported in the Senate, a bipartisan bill, we had a lot of money, a lot of resources going for additional barriers, fences, walls, depending on where it is. We obviously need better infrastructure on the border, so I’ll have to look and see what, where it’s going.
HH: Did the budget surprise you in any way, shape or form?
JF: Yeah. Yeah, I was surprised at one, how much Defense is beefed up, and two, how much State and other things were cut. So it was a bold budget.
HH: We might disagree here, Senator. I thought it was a little weak in Defense spending. I thought we were going to go up to the Gates budget, so I’m pushing for more. But let me ask you about one thing in particular. Is there any intellectual case for funding NPR in an era of podcasts and diversity in media available? Is there any reason to give a dime to NPR?
JF: No, I think that’s long past. I mean, if there was a justification, that I’d see things like that funded from the private sector. And I say that as a big NPR fan.
HH: You and me, both. I was just on it. I love NPR.
JF: Yeah, yeah.
HH: It just seems to me that, do you think the Senate is in a position to deal with reality now on budget matters?
JF: We’ll see, but I would assume that if it wasn’t taken care of during the 90s, it’ll be more difficult now. So I, you know, call my cynical on that one, but I think that funding will survive.
HH: I hope now. Senator Jeff Flake, always a pleasure, good luck in the hearings today. We’ll be watching with great interest. If that religion test comes up, shoot it down.
End of interview.