Flake: Want judges? Protect Mueller first
Sen. Jeff Flake drew a dramatic new line against President Donald Trump and his fellow Republicans on Wednesday, promising to vote against new federal judges unless the Senate protects Special Counsel Robert Mueller’s probe.
Flake, a lame-duck Arizona Republican, could jeopardize dozens of judicial nominations Senate GOP leaders want to push through before the current Congress ends in early January.
His move comes days after Trump installed Matthew Whitaker as acting attorney general, a position that effectively places him in charge of the Mueller investigation.
Whitaker’s earlier public remarks have sketched out ways to undermine Mueller’s investigation into Russian interference in the 2016 presidential election and possible obstruction of justice afterward.
On Wednesday, Flake sought unanimous consent to pass a bill with Sen. Chris Coons, D-Delaware, to protect the investigation, but Senate Majority Leader Mitch McConnell, R-Kentucky, immediately scuttled that request.
Flake, a member of the Senate Judiciary Committee who will leave office when his term ends Jan. 3, offered a swift response of his own.
“Because (the legislation) has failed today, Sen. Coons and I are prepared to raise it again and again, until there is a vote on this vital bipartisan legislation on the Senate floor,” Flake said on the floor. “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 a confirmation vote on the floor, until (the bill) is brought to the full Senate for a vote.”
Other Republicans, such as U.S. Sen. Lindsey Graham of South Carolina, have said they don’t think any protection for Mueller’s investigation is needed.
Flake’s move puts him in a now-familiar position of battling Trump’s agenda, but throws down his most serious threat. Earlier this year, Flake withheld support from approving circuit judges in a dispute with the White House over tariffs.
Without Flake’s support now, Republicans would need Democratic help to pass any nominee out of the Judiciary Committee by the usual process, which seems unlikely.
For nominees who have already made it out of the committee, Flake’s opposition means the GOP can’t afford any other Republicans to vote against confirmation without needing Democratic support.
“I think the senator has a lot of leverage here,” said Carl Tobias, a constitutional law professor at the University of Richmond. Trump and Republicans have touted their aggressive confirmation of federal judges as perhaps their most consequential action, Tobias said.
“That’s going to come to a crashing halt if Flake holds out,” he said.
There are 14 nominees, for example, on the Judiciary Committee’s schedule Thursday. Five of those positions are circuit judgeships, positions that are considered especially critical because most federal cases never make it past their appeals court.
Two of the five circuit nominees are in the San Francisco-based 9th U.S. Circuit Court of Appeals, which has jurisdiction over Arizona’s federal cases, Tobias said.
Federal judges are appointed for life. Flake has locked horns with Trump frequently, especially since announcing his impending retirement in October 2017 when it was clear he was out of step with Arizona Republicans. In the year since, Flake has repeatedly offered high-minded criticism of Trump’s style and even urged a Republican primary challenge for Trump in 2020.
Still, Flake has largely sided with Trump in matters before the Senate, ranging from support for the corporate tax cuts that passed in December to the confirmation of Supreme Court Justice Brett Kavanaugh in October.