Appeals court nominees languish in Senate as Flake demands tariff vote

Sen. Jeff Flake (R-Ariz.) is playing hardball as he tries to force congressional Republicans into a confrontation with President Trump over tariffs.

Flake, a vocal Trump critic who is retiring early next year, is taking aim at one of Majority Leader Mitch McConnell’s (R-Ky.) top priorities — judicial nominations — as he looks for leverage in the trade fight. The Arizona Republican is vowing to oppose any circuit court nominations until the Senate has a “significant vote” on tariff legislation.

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Some GOP lawmakers worry that the president is misusing national security provisions in U.S. trade law to achieve broader policy goals. Trump invoked that statute when he imposed tariffs on steel and aluminum imports, a move that prompted retaliatory tariffs from major trading partners like Canada, Mexico and the European Union.

“I do expect to get a vote,” Flake said. “But until I get a vote on tariffs, until we get a Senate vote on tariffs, I won’t vote for circuit court nominees.” 

His stance effectively leaves motionless the confirmation process for appeals court nominees unless Republicans can win over Democratic support. While GOP senators hold a 51-49 majority in the chamber, the absence of Sen. John McCain (R-Ariz.) means their support is capped at 50 votes without help from the other side of the aisle.

There are currently 13 circuit court judges awaiting confirmation in the Senate — three are ready for a vote by the full chamber and 10 are stuck in the Judiciary Committee’s pipeline.

Flake is not threatening to block Trump’s forthcoming Supreme Court nominee or any lower level district judges.

“I have all the leverage I need with circuit court nominees,” he said.

But Flake has leverage only so as long as all members of the Democratic caucus vote against the circuit court nominations. While most circuit court nominees have been confirmed on party-line votes, McConnell appears ready to maneuver around him when he thinks a nominee will get bipartisan support.

Before the Senate left town for its weeklong July 4 recess, McConnell filed cloture on the nomination of Mark Bennett to be a judge for the 9th U.S. Circuit Court of Appeals. The Senate Judiciary Committee approved his nomination in an 18-2 vote, indicating he’ll have enough Democratic support in the full Senate to break Flake’s blockade.

By comparison, the two other circuit judges who are awaiting confirmation votes by the full Senate — Andrew Oldham to serve on the 5th Circuit and Ryan Bounds to serve on the 9th Circuit — cleared the Judiciary Committee on a party-line vote, all but guaranteeing McConnell needs Flake’s support to get them confirmed.

This is not the first time Flake has tried to leverage the party’s narrow margin in the Senate.

A procedural vote on Jim Bridenstine’s nomination to be head of NASA was uncharacteristically held open for about an hour as Flake sought assurances from colleagues that he would get answers from then-CIA Director Mike Pompeo before the Senate moved forward on his nomination for secretary of state.

Flake also sided with Democrats to help shut down the government in January as he tried to get a firmer commitment from McConnell to bring up immigration legislation.

In a recent interview with ABC News, Flake suggested that other GOP senators might join his effort to get a tariff vote by blocking circuit court nominees. So far, none have.

Despite widespread concern among Republicans that Trump’s escalating trade war could roil the economy before the midterm elections, party leaders are wary of picking a fight that could prompt a backlash from Trump’s fervent base.

Earlier this week the caucus appeared close to resolving the tariff issue. Republicans had agreed to allow a vote on an amendment from Sen. Bob Corker (R-Tenn.) that would require congressional approval for tariffs imposed in the name of national security. 

But a vote on the amendment was blocked by Democratic Sen. Sherrod Brown (Ohio), who is up for reelection this year in a steel-producing state.

Flake has had more luck on the Judiciary Committee, where Republicans have an 11-10 majority. He is currently blocking two nominees.

Committee Chairman Chuck Grassley (R-Iowa) acknowledged that Flake can prevent the panel from holding votes on any divisive circuit court nominees because Republicans wouldn’t be able to win majority support on the committee.

“He’s doing what he thinks he has to do,” Grassley said. “On the other hand, I want to move as many judges as we can, and particularly circuit court judges.” 

Grassley downplayed the impact of Flake’s tactics, arguing the committee has plenty of work to keep it busy. But he added that he hopes the White House and McConnell will work out a deal with Flake.

The strong-arm tactics by Flake are rankling some of his colleagues, who are having their state’s nominees left in limbo because of a fight that doesn’t involve them.

“It’s wrong what he’s doing and I’m going to do everything I can to try to get him to drop his hold,” said GOP Sen. Johnny Isakson (Ga.).

Isakson is the home-state senator for Britt Grant, an 11th Circuit nominee who has languished for weeks on the Judiciary Committee’s agenda because she needs Flake’s support to be approved. Isakson said he discussed the matter with Flake, but to no avail.

The stalemate comes as senators have confirmed Trump’s circuit court picks at a record pace, allowing them to leave a decades-long impact on the federal judiciary. McConnell has pointed to nominations as one of the key reasons Republicans should keep the majority in November.

Other Republicans appeared hopeful that Flake will ultimately back down.

Sen. Pat Toomey (Pa.), who has also been a vocal critic of Trump’s tariffs, said he talked with Flake about David Porter, a nominee for the 3rd Circuit, and thought a vote would be allowed to go through.

But Porter’s nomination was delayed during a committee meeting because, without Flake, he doesn’t have enough support to be approved by the Judiciary panel.

Sen. Orrin Hatch (R-Utah), a former chairman of the Judiciary Committee, also predicted Flake will relent, noting that his Finance Committee will take up tariff legislation. 

But Flake indicated that he wants a vote on the Senate floor in exchange for lifting his blockade.

“We can get one. That’s what I’ve said to the leadership,” Flake said. “I know there are people in our caucus who don’t want to do it … that don’t want to cross the president. But we need to express ourselves.”