Senate Republicans next week will kick off an end-of-year push to confirm President Trump’s judicial nominations, one that could be thwarted by outgoing Sen. Jeff Flake, R-Ariz.
An early test of how big or little an obstacle Flake will be is Thomas Farr, who Republicans want to seat on the federal bench in North Carolina’s Eastern District.
Farr won party-line confirmation by the Senate Judiciary Committee in January to serve as a district court judge, but his nomination has been broadly opposed by Democrats and civil rights groups who cite his work defending North Carolina’s voter ID law, which was invalidated by a federal court for suppressing black votes. Farr is also disliked by Democrats and civil rights organizations over other items on his resume, including his role as lawyer for the late Sen. Jesse Helms, the North Carolina Democrat-turned-Republican who opposed civil rights legislation, access to abortion, and what he called the “homosexual agenda.”
Flake could make it even harder. Earlier this month, Flake said he would withhold his votes to confirm judges in an effort to force a Senate vote on a bill to protect special counsel Robert Mueller’s investigation into alleged ties between Russians and Trump’s presidential campaign.
“I have informed the Majority Leader that I will not vote to advance any of the 21 judicial nominees pending in the Judiciary Committee, or vote to confirm the 32 judges awaiting action on the floor, until the Mueller protection bill is brought to the full Senate for a vote,” Flake, who is retiring, announced on Nov. 14.
Flake’s decision throws real uncertainty into Farr’s fate. Flake voted to advance Farr on the Judiciary Committee, but with just 51 votes in the Senate, Republicans can’t lose any more votes for him.
And there are several who might vote no. Moderate GOP Sens. Susan Collins of Maine and Lisa Murkowski of Alaska have not indicated yet how they will vote on Farr, nor has Sen. Tim Scott of South Carolina, the GOP’s only black senator.
Senate Minority Leader Chuck Schumer, D-N.Y., is working to pressure Republicans to block Farr.
“Farr is a serious threat to voting rights,” Schumer tweeted on Nov. 16. “Americans need to tell Senate Republicans to block this nomination.”
While Farr may be one of the toughest judicial nominees to confirm, Flake’s defection could continue to hobble the efforts of Majority Leader Mitch McConnell, R-Ky., to confirm many other judicial nominees by the end of the year.
The Senate Judiciary Committee is expected to vote soon on 15 federal judges, and Flake’s refusal to vote with his party could make it hard to confirm nominees who Democrats oppose.
Flake is one of 11 Republicans on the panel, providing a one-vote majority over 10 Democrats.
Without Flake’s support, which will likely come as an abstention, party-line nominations will end up with a 10-10 result, which will prevent the Judiciary Committee from favorably reporting the nomination out of the panel.
That doesn’t stop McConnell from bringing those nominations to the floor, but it would be an unusual move for him to do so.
McConnell could choose to wait to take up party-line nominations in 2019, when Flake is gone and the GOP’s majority expands to a likely 53 votes. McConnell, however, has signaled he wants to clear the remaining nominees this year, and he could choose to simply sidestep the Judiciary Committee.
McConnell threatened to override the Senate Judiciary Committee in October, when Flake was wavering on whether to vote for Justice Brett Kavanaugh. Flake eventually voted in committee for Kavanaugh, but only after securing a weeklong FBI investigation into sexual misconduct allegations against Kavanaugh dating back to his high school days.
McConnell could also find some way to satisfy Flake on the Mueller bill, which McConnell has blocked from coming to the floor. Efforts so far include allowing a “sense of the Senate” vote on Mueller. Flake has rejected that proposal, however.
McConnell told reporters earlier this month the Mueller protection bill is unnecessary because he believes Trump won’t do anything to hinder the investigation, which the president has labeled a witch hunt.
