Senate Majority Leader Mitch McConnell, R-Ky., planned to confirm dozens of President Trump’s judges by the close of the 115th Congress in December. But the judicial express has hit a major roadblock.
Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, had to cancel plans to clear a slate of 25 nominees because one panel member, Sen. Jeff Flake, R-Ariz., won’t vote for them without a vote on a bill to protect special counsel Robert Mueller from being fired by Trump.
While there is no direct relationship between the Mueller probe and the slate of nominees, Flake has yoked the two together.
Flake, who is retiring, has evolved into Trump’s biggest GOP congressional foe, chastising the president in floor speeches and on Twitter about his conduct and rhetoric, particularly in response to the Russia investigation, which Trump has labeled a witch hunt.
Flake has made it his mission to compel a vote on the Mueller protection legislation before he departs at year’s end. For the second time this month, Sens. Flake and co-sponsor Chris Coons, D-Del., attempted to bring up the Mueller protection bill on the Senate floor and for the second time, McConnell blocked it.
In response, Flake has pledged to withhold his support of any of Trump’s judicial nominees both on the floor and from his perch in the Judiciary Committee, where Republicans hold a narrow 11-10 majority. Without his backing, the panel cannot favorably report any of the pending nominees to the Senate floor this year. The list includes 22 judicial picks and three executive branch nominees.
In addition to the 25 postponed nominees, there are 50 awaiting hearings and a final vote in the Judiciary Committee.
Grassley told the Washington Examiner that he will postpone votes on the nominees “until Flake can vote for them.”
On Monday, Grassley set up another business meeting to consider the nominees this week, on Thursday. But there are no signs Flake has changed his position, and the move seemed more like a way to give Flake a chance to change his mind, and less like a sign that Flake will suddenly change his mind.
McConnell hasn’t wavered in his opposition to the Mueller legislation, which is based on his belief that Trump will never fire or otherwise interfere with the probe.
“This is a solution in search of a problem,” McConnell said last week. “The president is not going to fire Bob Mueller, nor do I think he should, nor do I think he should not be allowed to finish. We have a lot of things to do to finish up this year without taking votes on things that are completely irrelevant to outcomes.”
In addition to the nominees pending before the Judiciary Committee, there are 33 judicial picks that have already won approval from the panel and are awaiting a floor vote.
Republicans hold a two-seat majority and can pass some of those nominees without Flake, but his lack of cooperation has already made things difficult.
Senate Republican leaders postponed a vote scheduled for last week on Thomas Farr, nominated to the federal bench in North Carolina’s Eastern District. Flake’s opposition, coupled with an undecided Sen. Tim Scott, R-S.C., made it plausible his confirmation would fail, which would have been a huge embarrassment for the president.
Scott on Thursday announced his opposition to Farr based on his involvement decades ago in a scheme to distribute postcards that state officials determined were used to suppress black voters in North Carolina. Farr, a lawyer, also defended the state’s voter ID law, which was struck down in court and deemed racially discriminatory.
Without Flake on board, Farr’s nomination is stalled for this year and could be shelved permanently.
Flake could likely stop any nominee who draws more than one GOP “no” vote, and he could prevent McConnell from clearing any judges in an end-of-year confirmation package agreed to by voice vote that typically comes in December.
Nominees who are not confirmed this year must be re-nominated by the president in the new Congress and be subjected to another Judiciary Committee vote.
Flake’s Republican colleagues have mixed feelings about the Mueller bill. Some would vote for it but few view it as a high priority.
Nobody is questioning Flake’s tactics, however. Flake will not be in the Senate come January and Republicans will have expanded their majority by two seats.
“Does he have a right to do it? Yes. Do I agree with him? No,” Sen. John Kennedy, R-La., a member of the Judiciary Committee, said. “It is his right to do it, and I’m not going to impugn his motives. He feels very strongly about this. The short way home is we’re going to have to do these nominations next year.”
Editor’s note: This story was updated Tuesday morning to reflect the new hearing Grassley set this week, and this update does not appear in the print magazine edition of the story.
