Why I Am Disappointed with Jeff Flake

What is our Class Day ceremony about? It is a celebration of our hard work as students in law school, and of our induction into the professional world of the law. These are honors whose meaning and value depend in every ounce on the vitality and integrity of the legal system itself.

And so we are lucky, as law school graduates, to be entering into a political environment where the rule of law is of foundational, universal import. And where lawyers wield real, respected authority in the enforcement of law and the pursuit of justice.

But that political environment is currently in crisis. The president’s politics, apparently shared by a large number of high-up Executive and Congressional officials, betray a consistent thread of anti-democratic, authoritarian values. Between denying objective truth, threatening the free press, indulging nativist demagoguery, endorsing racist stereotypes, persecuting unauthorized immigrants, interfering in the free market, laughing off due process[1], selling public influence for private gain, compromising American interests to hostile foreign governments, undermining public faith in the judiciary, and obstructing independent prosecutorial and intelligence agencies, it is not too alarmist to say that the political foundation of this country, and the place of law within it, are under threat.

Senator Jeff Flake understands this. In a speech late last year, he announced his retirement from the Senate while delivering a clear and strident indictment of the president and his establishment enablers. In his view too, “[t]he personal attacks, the threats against principles, freedoms and institution, the flagrant disregard for truth and decency” amount to a “danger[] to [our] democracy.”[2]

The issues he identified are not issues of partisan ideology; of clashing cultural values. They are attacks on foundational principles of American society: a danger to our future, and an insult to our history, our people, and those precious few values which we, all of us, do share.

Senator Flake deserves credit for drawing attention to these problems with such bold clarity. There are others in his party who would avoid any comment, deny the existence of any problem, or even welcome its further development.

But the nation’s crisis is not simply a lack of attention, or understanding. Our media is still free enough, and our government still transparent enough that we know what the problem is. And we have enough historically informed, outspoken critics who can recognize and teach the kind of dangers it represents.

Rather, the crisis we face is a crisis of complicity: a shortage of people in positions of power who choose to actually stand against the problems all of us can so clearly see. Before and since the election, powerful figures across our public institutions have shirked their personal responsibility to defend against these attacks on our democracy. They have taken cover in the complexity of public life—the ubiquitous possibility of deflecting with moral ambiguity; the impossibility of pinning responsibility on any one actor or act—and forged ahead with plausible deniability, assured that they did no harm by pursuing the path that was convenient, safe, or personally advantageous. Senator Flake sees this tendency in his own party, warning: “[w]hen we remain silent and fail to act when we know that silence and inaction is the wrong thing to do, because of political considerations … in spite of what should be greater considerations and imperatives in defense of our institutions and our liberty, we dishonor our principles and forsake our obligations.”

Indeed, our legal system is well equipped to handle a corrupt president. But it makes no provision for a government and society that enable him. The danger to our democracy is no less at the hands of Donald Trump than at the hands of those who surrender their opportunity to stand in his way.


At this level—at the level of action—Senator Flake has done painfully little. Yes, he spoke out. But he is more than a voice. He is a United States Senator. He holds an office of rare political significance, with direct power to investigate and oversee the executive branch and, perhaps more importantly, to cast and withhold votes that create law and gatekeep executive and judicial offices. Senators are defined by their votes, and their ability to use those votes for leverage: to coordinate with like-minded colleagues, seize opportunities for negotiation and compromise, and transform political momentum into action on their own priorities. The Senate in which Flake serves also happens to have a narrow margin of majority. His individual vote carries more leverage than most senators’ at most times in this country’s history. Few people have greater power or opportunity to steer the course of our government, or to force a change in our politics.

But Senator Flake has apparently chosen not to force any change. He has voted to confirm every one of Trump’s executive appointments, with the recent exception of Gina Haspel. He has voted to advance every one of Trump’s Congressional enablers’ most prized legislative priorities. And he has not a modicum of executive oversight, ethics compliance, or policy change to show for it.

It is not as though Senator Flake is unaware of his ability to advance his interests through leverage. Last month, he used his vote on the confirmation of Jim Bridenstine to secure “assurances that he would have [an] opportunity” to talk to CIA Director Mike Pompeo about travel restrictions to Cuba[3]. Last December, he employed his leverage over the tax bill to get Majority Leader Mitch McConnell to commit to a vote on a DACA bill[4]. But these modest concessions are targeted exclusively to his pre-existing policy priorities. The anti-democratic abuses that he denounced so loudly have remained perfectly undisturbed.

And Senator Flake’s failures go beyond complicity; he himself has played an active role in the upswell of anti-democratic politics that he criticizes so staunchly in the president.

He was a proud participant in the disgraceful stonewalling of Merrick Garland and dozens of other judicial nominees. In the case of Garland, he justified his actions on the basis that he was “not about to break new ground” by confirming an opposition president’s nominee in an election year[5]. How distant is this doublespeak[6] from Trump’s disregard for truth? And in service of what end is it deployed? Denying even a hearing to a nominee universally regarded as supremely qualified and politically moderate; obstructing a president who held a higher approval rating at the time than the averages of both his predecessor and successor; exercising a core Congressional power by political brute force instead of reasoned consideration and open vote; arguably shirking a Constitutional duty; at the very least, changing Congressional practice in a way that will make mixed-party governance forever more difficult, further polarizing our party politics and destabilizing our constitutional structure.

Senator Flake also played full part in the rushed, secretive, and dishonest legislative processes of the recent tax and healthcare bills. By keeping the public in the dark, these processes hamstrung democratic accountability, a core assumption of our constitutional system. By keeping political opponents in the dark, they removed any possibility of bipartisan cooperation. They involved baseless attacks on the credibility of nonpartisan experts, including essential public institutions like the CBO. Are these attacks themselves not a “flagrant disregard for truth”? And worst of all, these processes kept the voting majority in the dark. Most of the Congressmen and women who passed the bill were unable to read it beforehand. Several of them have already expressed open regret of their votes, now that time has allowed for more sober consideration.[7] This kind of process endangers the legitimacy of Congress itself. Our legal system relies deeply on the assumption that Congressional Acts represent meaningful compromises between competing interests. How can we enforce the laws of a Congress that proceeds by foregoing deliberation and enforcing ignorance and confusion? What kind of democracy legislates in purposeful defiance of reason and evidence?


Even amidst his strident criticism of the president, then, Senator Flake himself has been an agent of the degradation of our politics and erosion of our institutions. I give him credit for vocalizing concerns about principles that are worth defending. But his record tells a different story: one of both deep failure to act in accordance with his stated values and casual disregard of the norms and principles that protect the rule of law.

What message does it send to honor such a person with our class day address? What does it say to the world that the students of Harvard Law School would give that honor to Senator Flake, of all people? What does it say to Senator Flake that we, as law students, see him as worthy of reward? And what are we, as law graduates, to take from his example? We, who have committed our time and livelihoods to the legal system. We who, on graduation day, will ourselves be awarded a significant power, and set out in the world to use it as we please.

Our class speaker should be someone who respects the law, and who knows what it means to use privilege with character and mettle. To act as though Senator Flake is such a person would be to recognize words above action; to put status and notoriety above principle and deed. To hold him up as an example for our graduating class would be an insult to the legal profession.

On the day I graduate from law school, I will have in mind my respect for the law and, its grievous shortcomings notwithstanding, its central role in the peace and prosperity we are lucky enough to enjoy. I hope that Senator Flake, like me, will leave our school with more of that respect than he came with.

AUTHOR’S NOTE: For brevity’s sake, I have omitted some material that might otherwise be worthwhile, including more detailed factual support, and express defenses of some important assumptions and implications. If these, or any other feature of the piece, bother you, please feel free to contact me via my Harvard email: enachman@jd18.law.harvard.edu.

[1] https://www.c-span.org/video/?c4716589/trump-take-guns-first-due-process-second

[2] https://www.nytimes.com/2017/10/24/us/politics/jeff-flake-transcript-senate-speech.html

[3] https://www.washingtonpost.com/news/powerpost/wp/2018/04/18/lame-duck-sen-jeff-flake-just-showed-how-he-still-has-some-leverage/?utm_term=.5a119981ebaf

[4] https://www.cnn.com/videos/politics/2017/12/20/flake-commitment-to-vote-on-daca-sot-lead.cnn

[5] https://ballotpedia.org/U.S._Senators_on_the_nomination_of_Merrick_Garland

[6] This was not new ground; that a hearing could be granted even if confirmation was not; and that his preferred course of action did break new ground, with unprecedented obstruction. Before Garland, the longest any nominee had had to wait from nomination to result was 125 days. https://www.nbcnews.com/news/us-news/merrick-garland-now-holds-record-longest-supreme-court-wait-n612541. No Senate has ever denied the president the power to fill a Supreme Court vacancy that opened during his term. https://www.nytimes.com/2016/06/14/us/politics/obama-supreme-court-merrick-garland.html

[7] http://thehill.com/opinion/finance/388281-tax-reform-postmortem-reveals-lethal-dose-of-crony-capitalism

Emil Nachman

Emil Nacham is a member of the Harvard Law School Class of 2018.

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