Jeff Flake’s vow to oppose judicial nominees

Senate Republicans unload on Flake

GOP colleagues are grumbling over Jeff Flake’s vow to oppose judicial nominees until he gets a vote to protect the Mueller probe.

By BURGESS EVERETT and ELANA SCHOR

Jeff Flake is finally taking a stand on the need to protect Robert Mueller — and it’s infuriating his fellow Republicans.

The retiring Arizona senator is undermining the Senate GOP’s efforts to approve as many lifetime-appointed federal judges as possible in the lame duck. His vow to oppose all judges until he gets a vote shielding the special counsel from presidential interference has already frozen 21 judicial picks in committee and on Thursday helped derail a nominee on the Senate floor.

And GOP frustrations are boiling over at Flake, a Trump critic who is using the leverage possessed by an individual senator to advocate for his priorities. But so far McConnell has been unwilling to bend to Flake and give him a vote — which might not pass the Senate anyway, given the number of Republicans resistant to the Mueller bill or Flake’s hardball tactics.

“I don’t think that was a smart move,” Sen. Orrin Hatch (R-Utah), who is also retiring, said of Flake’s blockade. “It’s starting to irritate people... He’s a good guy. But I think he’s carrying it a little bit far.”

The former Judiciary chairman said that giving in to Flake would set a “bad precedent” for the chamber and added that President Donald Trump wouldn’t fire Mueller despite his repeated attacks on the Russia probe. “That would be the stupidest thing the president could do.”

“It is not productive,” said Sen. Ted Cruz (R-Texas), who has also been known to cause major headaches for McConnell. “One of the greatest substantive victories that we have delivered for the American people the last two years is nominating and confirming strong constitutionalist judges. For a Republican senator to be blocking that is frustrating the promises we made to the voters."

Flake has often been ridiculed by liberals for bending to the Trump administration by eventually voting to confirm Brett Kavanaugh to the Supreme Court and dropping a previous stand against nominees over Trump’s tariff policy. Now he’s unrepentant about the criticism he is drawing from the right, despite the risk of turning his party against him as he leaves the Senate.

“There are judges there that I want to move too. And I hope to be able to do that. As soon as we get a vote. We need a vote,” Flake said. Asked if he senses any movement from McConnell on the issue, he answered: “Nope.”

If he stands firm, Flake could unravel months of work from McConnell, Judiciary Chairman Chuck Grassley, and the Trump White House. Twenty-one judges were set to advance from the Judiciary Committee on Thursday if Flake had dropped his opposition, and Thomas Farr had strong prospects of being confirmed to a District Court in North Carolina.

Instead, the Judiciary hearing was canceled and Farr‘s nomination collapsed in dramatic fashion late Thursday. Amid withering Democratic criticism of his record on voting rights and stiff opposition from Flake, Sen. Tim Scott (R-S.C.) announced he would oppose Farr as well, dooming Trump‘s appointment.

Sen. Thom Tillis (R-N.C.), a leading Farr backer and co-author of the Mueller protection bill, acknowledged that "you can’t not be frustrated when you see nominees that were voted out of committee with Senator Flake’s support now being held up. On, incidentally, a policy matter I support."

“I just don’t see any path to success, and in the meantime we’re holding up a number of qualified judges that Sen. Flake voted out of committee," Tillis added.

Republicans have dealt with this before: Sen. Rand Paul (R-Ky.) has frequently used his senatorial leverage to force votes on his priorities over the years, often drawing public and private jeers from his colleagues. And just this week Sen. Lindsey Graham (R-S.C.) threatened to vote down GOP priorities until he got a CIA briefing on the killing of journalist Jamal Khashoggi.

“That’s the road he’s going down. He’s using his leverage. I don’t mind having a vote on the bill,” said Graham, who supports the Mueller protection bill but is going to “leave it up to Mitch” on whether the bill comes up. “I wouldn’t do [what Flake’s doing]. But in the Senate you’ve got to use your leverage to get the things you think are important. Rand Paul does this all the time.”

Republicans are trying to assuage Flake through multiple avenues, including assessing conference support for the Mueller bill. But they are also trying to subtly encourage him to back off.

Several Republicans thanked him at a private party lunch on Thursday for switching his “no” vote to “present” on a Circuit Court nominee Thursday rather than tanking it outright because of a GOP absence, according to one attendee. Republicans are hoping that approach might cause Flake to rethink his position.

Grassley summed up the GOP’s treatment of the retiring Arizonan by noting dryly that “it’d be better” if Flake would stand aside and let nominees get through.

“I have not had any conversation with Flake, because I respect senators’ right to do what they think is necessary,” Grassley added on Thursday. “If we had a conversation, I would tell him I’d prefer him not to do it.”

Grassley also noted that if the nominees remain stalled in the committee, it’s possible for the Judiciary panel to vote on them quickly next year given that hearings already have occurred. But Flake's stand at least ensures they won't be confirmed this year.

Flake and Sen. Chris Coons (D-Del.) have twice this month been blocked by the GOP on requests for a floor vote on the Mueller protection legislation, which cleared the Judiciary panel in April but has stalled ever since amid longstanding resistance from McConnell.

The legislation would allow the special counsel to challenge a firing for reasons beyond “good cause” such as misconduct on the job and require a Senate-confirmed official to terminate Mueller — a status that acting attorney general Matthew Whitaker does not have.

Trump, meanwhile, has taken to Twitter multiple times this week to rage against Mueller’s investigation, posting an image that showed Deputy Attorney General Rod Rosenstein behind bars and later saying that “he should never have picked a special counsel.”

Mueller’s team drew closer to Trump’s inner circle on Thursday, with the president’s former lawyer Michael Cohen pleading guilty to a criminal felony charge related to making false statements to Congress.

Flake has spent much of Trump’s administration excoriating him as a threat to the foundations of conservatism, and lately has openly mulled running against the president in the absence of another credible GOP primary challenger.

And while some on the left have urged him to use more of his leverage against Trump, Flake’s latest stand is mostly drawing praise from Democrats.

“I support him completely,” said Senate Minority Whip Dick Durbin (D-Ill). “I think the notion of protecting the independence of the special counsel is worth [it].”