The Senate Judiciary Committee cancelled a Thursday hearing on judicial nominees as Jeff Flake’s stand for a bill to protect special counsel Robert Mueller continues to wreak havoc in the lame duck session.
The panel was scheduled to advance six Circuit Court nominees, 15 District Court nominees and several bipartisan bills on Thursday to prepare them for possible floor action over the next month. But Flake, who is retiring at the end of this year, is holding firm to his vow to vote against judicial nominees on the floor and in committee unless Senate Majority Leader Mitch McConnell (R-Ky.) schedules a vote on the bipartisan special counsel legislation.
Flake and Sen. Chris Coons (D-Del.) attempted to bring up the bill on Wednesday and were blocked by Republicans that oppose it. Relatedly, Flake voted against Thomas Farr’s nomination to be a District Court judge on Wednesday afternoon, forcing Vice President Mike Pence to break a tie after wavering Sen. Tim Scott (R-S.C.) voted to advance Farr.
I continue not to understand the strategic endgame here, with Flake six weeks away from retirement and the Senate about to gain a few extra Republican votes. If the Senate had turned blue in the midterms Flake would have Trump and McConnell over a barrel. There’d be a mad rush to confirm as many nominees as possible before Schumer takes control. As it is, if he has to, McConnell can wait Flake out.
I don’t understand what he thinks the prospects for the bill are either. Trump obviously will never sign it. There’s near-zero chance that the Republican House would pass it next month in its waning days as a majority. Pelosi’s Democratic House would pass it next year but Flake won’t be around to reintroduce it in the new Congress. (Pelosi’s caucus will probably pass its own bill, which will disappear down the toilet in the Senate.) Getting a vote on the bill in the Senate now seems like a pure exercise in putting all 100 members on the record, to show where they stand on the idea of Trump firing Mueller. But even that doesn’t really work: There are strong constitutional arguments against any bill that would take some of the president’s power to appoint executive-branch employees and hand it to Congress or the judiciary. Watch Mike Lee make the case below in a colloquy with Flake, after he objected to Flake’s attempt to force a vote. Every Republican in the Senate could vote no on the bill and say afterward, credibly, that they couldn’t support the bill on separation-of-powers grounds. It has nothing to do with Trump or Mueller per se.
Which reminds me: Is there any evidence at all that Flake’s bill might advance even if it did get a vote? He’d need 10 Republicans to vote with him to beat a filibuster, assuming all 49 Democrats vote yes. Who are those 10 Republicans? Which Republican senator wants to risk pissing off Trump’s base, and Trump himself, by casting a tough vote on a bill that has no chance of becoming law?
For cripes sake, even Republicans who are mad at Trump and have vowed to block him on big votes until their own pet priorities are addressed are looking for excuses not to actually oppose him. Remember when Lindsey Graham trudged out of yesterday’s briefing on Saudi Arabia vowing to oppose the White House on all key votes until he heard from Gina Haspel about the Khashoggi killing? Well, as chance would have it, there was a key vote yesterday afternoon on a controversial district-court nominee, Thomas Farr. Flake voted no, meaning that every other Republican’s vote was needed to advance Farr’s nomination. In the end, McConnell got all of those votes — including Graham’s. How did that happen? Quote:
Graham told McClatchy Wednesday he will vote for Farr’s confirmation, saying he does not consider that a key vote.
“It’s a district court,” explained Graham, who is expected to be chairman of the Senate Judiciary Committee next year. “I’ll save my powder for the big stuff.”
He’ll vote with Trump on key votes but not on the really key votes. That’s hardball, Grahamnesty-style. Farr, by the way, was supposed to receive his final vote on confirmation today. That’s now been canceled due to Flake’s opposition.
Cornyn said a few days ago that McConnell might end up giving Flake a vote on the Mueller bill after all, just to get it out of the way and let the judge parade resume. Unless Republican leaders think it has a chance of passing a cloture vote, which it probably doesn’t, I don’t know what’s stopping them. Any Republican who’s afraid of angering Trump can just hide behind Lee’s argument and vote no on constitutional grounds.