Senate Majority Leader Mitch McConnell, R-Ky., is hurting the conservative cause by taking a hard line against a gambit by retiring Sen. Jeff Flake.
Flake, the Arizona Republican famously at odds with President Trump, says he will vote against every pending judicial nominee unless McConnell allows a Senate floor vote on a bill designed to protect the Russia-related investigation of special counsel Robert Mueller. Flake is the primary Senate sponsor of the bill, along with Democrats Chris Coons of Delaware and Cory Booker of New Jersey.
Flake holds the key swing vote on the Senate Judiciary Committee, before which 25 of President Trump’s judicial nominees await a vote. Without his support, no nominee opposed by all the committee Democrats can advance to the full Senate. Another 34 nominees have passed the committee but still await confirmation by a full Senate where Republicans hold a slender 51-49 edge.
McConnell has said repeatedly that it is his goal to confirm as many Trump judicial nominees as expeditiously as possible. Outside conservative groups have been pushing the Senate hard to confirm numerous judicial nominees before this Congress adjourns forever at the end of December. Flake’s stance is a serious hindrance to that agenda.
McConnell says the bill, called the “Special Counsel Independence and Integrity Act,” is an unnecessary “solution in search of a problem,” and other Republicans argue that it is unconstitutional. But because Flake is leaving the Senate, there is little McConnell can do to discipline the Arizonan for his intransigence. Meanwhile, several Democrats also are threatening to block “must pass” spending legislation if the protect-Mueller bill is not allowed a vote.
Flake and his allies hold all the leverage here. If McConnell wants to confirm the judges this year (thus clearing floor time next year for other priorities), not to mention advancing other legislation a conservative leader should be pushing in a “working duck” session while Republicans still control both chambers of Congress, his only apparent choice is to meet Flake’s demand.
The reality is that it will cost McConnell, Republicans, and Trump almost nothing to comply with Flake. It is not certain that the protect-Mueller bill actually will pass the Senate if a vote is allowed — and even if it does, it will be immaterial. There is absolutely no way that outgoing Speaker of the House Paul Ryan, with a 23-seat Republican majority for another month, would allow the House to take up Flake’s legislation. Unlike in the narrowly divided Senate, no person or group in the House holds enough leverage to force a vote there.
(And, of course, Trump holds the veto anyway, so it would never become law.)
From the standpoint of sheer practical politics, then, McConnell ought to submit to Flake’s demands. It doesn’t matter if the bill is needed, or wise, or constitutional. It will not pass the House or be signed into law, period.
So why not allow the debate and vote that Flake demands, and then move on? Better to get the rest of the Senate’s business, especially judicial nominees, completed, than to protect Trump from what at worst will amount to a symbolic rebuke if the bill passes.
Symbolic rebukes don’t carry the force of law. But conservative judicial nominees unconfirmed will leave too many federal courts still under the control of too many liberal judges — and they will interpret existing laws in ways obnoxious to McConnell and detrimental to good government.
This is one situation in which a Flake can’t just be brushed off.
