How The Mueller Investigation Led To A Hold On Judicial Confirmations

You wouldn’t think that the Mueller investigation would have any impact on the ability of Republicans to confirm federal judges. In the current crazy news cycle, you would be wrong.

On Wednesday, a trio of anti-Trump senators tried to bring up a bill that would protect Special Counsel Robert Mueller from being fired. Sen. Mike Lee (R-Utah) sided with Republican leadership and blocked the bill from coming to vote. Lee’s move led directly to the cancellation of a scheduled Thursday meeting of the Senate Judiciary Committee that would have prepared several judicial nominees for confirmation votes.

Here is how the two are related:

Lame duck Sen. Jeff Flake (R-Ariz.) was one of the sponsors of the Mueller protection bill. Flake, who is a vocal Trump critic, had threatened to block judicial nominees if Republicans did not allow a vote on the bill.

In retaliation for the Republican action on the Mueller bill, Flake voted against advancing the nomination of Thomas Farr to a federal District Court judgeship. Farr’s nomination did move forward after a 50-50 tie in which Vice President Mike Pence cast the deciding vote. Farr’s confirmation is still in doubt since Sen. Tim Scott (R-S.C.), who voted “yes” yesterday, has indicated that he may vote “no” on Farr’s confirmation.  

Scott’s hesitation on Farr stems from a Justice Department memo that links the nominee to a controversial postcard campaign for a Jesse Helms campaign in 1990 that targeted black voters. At the time, Farr was the attorney who represented the head of the North Carolina Republican Party in the investigation of the postcards.

Since there are currently only 51 Senate Republicans, Flake’s stand makes it extremely difficult to advance and confirm judicial nominees. If the 49 Democrats all vote “no,” any Republican opposition in addition to Flake would reject a nominee.

The situation is similar on the Senate Judiciary Committee where Republicans outnumber Democrats 10-9. A “no” vote from Flake paired with 9 Democrat “no” votes would give nominees an unfavorable rating. Even though Majority Leader Mitch McConnell could bring nominees up for a vote with an unfavorable rating, Republican leaders hope to avoid that contingency.

Time is on the side of the Republicans in the battle for the judiciary. When the new Congress convenes in January, the GOP will have gained two seats and will have a larger margin in party-line votes. The House, which will soon be under Democrat control, does not have a role in confirming presidential appointments.   

Also in January, Jeff Flake will be gone. The man who has been such a thorn in the side of President Trump and Mitch McConnell is retiring. He will be replaced in the Senate by the new Senator from Arizona, Kirsten Sinema.

Originally published on The Resurgent