Jeff Flake: I won't vote to advance any of the 53 judicial nominees who are pending until we vote on a bill to protect Mueller

He’s a member of the Judiciary Committee, remember, which is currently split 11/10 between Republicans and Democrats. If Flake votes no, nominees pending in the Committee will come to the floor without the Committee’s recommendation.

And if he votes no on the floor then McConnell starts with just 50 votes, the bare minimum. Would Susan Collins vote no with him? Last week she said she was “concerned” about Matt Whitaker’s skepticism towards Mueller’s probe in 2017 and echoed Flake’s call for a bill that would protect the special counsel from being fired by Trump. If Collins joins forces with Flake here then McConnell’s in a hole and needs a Democrat to vote yes to get anyone confirmed. If Murkowski also joins Collins and Flake then McConnell needs two Dems. Maybe Bob Corker, who’ll be an ex-senator in January, will join them as well. Then McConnell needs three. Chuck Grassley has also seemed interested in the bill. That’s four.

Or, I guess, McConnell could just content himself with knowing that the Senate will have a few more Republican members two months from now and wait until then to confirm the 53 nominees. That’s the flaw in Flake’s stunt here. He’ll be gone soon, Cocaine Mitch won’t. Time is on the latter’s side — unless Collins and Murky decide to pick up next year where Flake off and find two other Republicans willing to blockade Trump’s judges and until the Mueller bill gets a vote. Would Ben Sasse go for that? Is there a single other Republican among the (likely) 50 remaining members of the caucus who’d join them? If in fact next year’s Senate ends up 53/47, as it appears, the pro-Mueller contingent will need four.

Flake said Monday evening that he hoped McConnell would change his mind after Sessions was forced out. “He’s said nobody’s been fired and the special counsel is not in danger. That is not the case now,” said Flake…

The Special Counsel Independence and Integrity Act would require that the special counsel could only be fired for good cause, and would allow for the courts to overturn the firing if good cause could not be proved.

If the bill ever got to a Senate vote it would have a good chance of passing given that it is supported unanimously by Democrats and by several Republicans. But it has always faced very long odds of becoming law, given that it would require Trump signing on to a measure that limits his own powers.

Flake and his co-sponsor of the legislation, Chris Coons, sought unanimous consent to advance it today. McConnell himself objected to deny them that, inspiring Flake’s new threat. If this isn’t resolved soon, Schumer may force the issue:

Senate Minority Leader Chuck Schumer suggested Wednesday that Democrats may try to tack on the special counsel legislation to the spending bill that Congress must pass during the lame-duck session to prevent a government shutdown.

“If Mr. Whitaker does not recuse himself, we Democrats are going to attempt to add legislation to the must-pass spending bill in the lame duck session that will prevent acting Attorney General Whitaker from interfering with the Mueller investigation in any way,” Schumer said.

That’s different from Flake’s bill, which would add protections for Mueller rather than focusing on Whitaker, but Trump won’t like Schumer’s version either.

I wonder if McConnell would be as resistant to a floor vote on Flake’s bill as he is if the House were set to remain in Republican hands next year. With a GOP House that’s strongly loyal to Trump, McConnell might have allowed the Senate to pass it, trusting that Ryan’s caucus would kill it before it ended up on Trump’s desk and tempted him to issue an embarrassing, controversial veto. As it is, it’s highly likely that Pelosi’s caucus will pass a bill like Flake’s early next year; if the Senate passes its own version now, that’ll create extra pressure on them to pass the Democrats’ similar bill in 2019. No bueno for Trump and relations between the White House and McConnell’s caucus. So Cocaine Mitch is trying to bottle this up, as much as he can.

It’s not that tough a vote for Republican fencesitters, though. Conservatives like Mike Lee have already made the case that any such bill would violate separation of powers by infringing on the executive’s prerogatives. Any GOP senator anxious about alienating Trump could vote no and cite that principled objection as their reason rather than mere toadying to the president.

As for Flake, is he saying that he’ll vote against Trump’s judges or that he’ll merely vote present? If he and Collins vote present and all remaining Republicans vote yes, McConnell could still advance the nominees on a 49/49 vote with Pence casting the tiebreakers. If he and Collins vote against the nominees, that won’t work. Exit question: Might Senator Mitt Romney provide the fourth vote with Collins, Murkowski, and Sasse next year to blockade Trump judges unless this bill passes? I’m guessing … no, probably not.

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