Jeff Flake Just Made It Easier For Trump’s Supreme Court Pick To Be Confirmed

Retiring Arizona Senator Jeff Flake says that he will not seek to block President Trump's nominee to replace Anthony Kennedy on the Supreme Court.

Senator Jeff Flake, who is retiring from the Senate at the expiration of his current term and has repeatedly butted heads with the Trump Administration over the President’s rhetoric and other issues, says that he will not seek to block President Trump’s nominee to replace retiring Justice Anthony Kennedy:

U.S. Sen. Jeff Flake said Wednesday he would not try to strong-arm the Trump administration on tariffs — or other issues — by withholding his support from a Supreme Court nominee.

The outgoing Arizona Republican and member of the Senate Judiciary Committee said he will evaluate the person nominated to replace the retiring Justice Anthony Kennedy separately. Flake’s apparent cooperation would seemingly leave Senate Democrats still searching for at least one GOP ally to block a nomination to the high court sometime later this year.

Flake has recently stalled at least some federal appeals court nominations by withholding his support on the Judiciary Committee in an effort to pressure the Senate to vote on President Donald Trump’s tariff changes, which Flake opposes.

“There are lots of folks out there who assume because I’ve not been in line with lots of the president’s policies, and certainly haven’t condoned his behavior, that I should oppose everything, every one of the president’s nominees or whatever. I’ve never taken that position,” Flake said in an interview.

“My goal here is not to block judges. My goal is to get a vote on tariffs, and I have all the leverage I need with circuit court nominees,” he said. The Supreme Court “is unaffected. I have all the leverage I need. I certainly wasn’t anticipating a Supreme Court vacancy, but it’s unaffected.”

Flake also said his standards for judicial nominations isn’t changing, either.

“This is important in its own right. I want someone who will interpret the Constitution and not legislate from the bench; it’s what I’ve always said in terms of how I would view any nominee,” Flake said. “It’s what I did with (Supreme Court Justice Neil) Gorsuch and I thought he passed the test. It’s what I’ll do with this one.”

Previously, Flake had said that he would seek to block Trump’s nominees to the lower Federal Courts as a means to force a vote on a bill he is sponsoring to rollback or alleviate the tariffs that the President has been putting into place since March. In the wake of yesterday’s announcement that Justice Anthony Kennedy would be retiring from the Supreme Court, there was speculation among Washington pundits and Democrats about whether Flake would apply that policy to whoever Trump names to replace Kennedy on the nation’s highest Court. This response from Flake, coming less than twenty-four hours after Kennedy’s announcement, seems to make clear what his answer to that question might be. Realistically speaking, of course, it’s not surprising. Even if he isn’t standing for election in November, Flake is still a conservative and it should not come as a surprise to anyone that he might still be interested in ensuring that the Court moves in a conservative direction even if he isn’t going to be in Congress after the end of the year. After all, Flake may be a Trump critic, but he is not a Democrat and it’s foolish to believe he is suddenly going to start to vote differently from the way he has in the past.

One thing this does make clear, though, is that Flake’s response to this question, assuming he sticks to it, means that it will become even harder for Democrats to do anything to stop or slow down the confirmation of Trump’s eventual nominee once they are named. As James Joyner pointed out yesterday, thanks to the decision that Republicans made to end the filibuster for Supreme Court nominees, which was, of course, the logical conclusion of the precedent created when Harry Reid did the same thing for District Court, Circuit Court of Appeals, and Executive Branch appointments, they can no longer rely on the filibuster to stop a nominee. The most they can do, perhaps, is slow down the process a bit but that will just end up delaying the inevitable. This leaves there only hope the prospect of one or more Republicans, such as Susan Collins or Lisa Murkowski, defecting and voting against the nomination. Even if that unlikely event occurs, though, Democrats face the prospect of noting being able to hold their own caucus together. As I noted yesterday, the vote on this nomination will likely take place just over a month before Election Day, and that’s going to make it hard for Democrats in red states to vote against an otherwise qualified nominee. This is especially true with regard to Senators Joe Manchin, Heidi Heitkamp, and Joe Donnelly, all three of whom voted in favor of the confirmation of Justice Neil Gorsuch last year. If they defect again, then the prospect of losing either Collins or Murkowski or both, while simultaneously having to deal with the fact that John McCain probably won’t be able to vote, will be far less of a problem for Majority Leader McConnell.

FILED UNDER: Congress, Donald Trump, Law and the Courts, Politicians, Supreme Court, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. James Joyner says:

    Reportedly, Trump is going to nominate from the same Federalist Society list that had Gorsuch atop it. If so, that means he’ll nominate an extraordinarily well-qualified individual but one with a conservative ideological bent. Presuming that’s the case, I’d be shocked if a single Republican Senator defected and, as you say, I’d expect some Red State Democrats to go along.

    Really, the only thing that can stop Trump at this point is Trump. If he nominated a Harrold Carswell or a Clement Haynsworth—or maybe even a Harriet Miers—he’ll have a fight. Otherwise, it’ll be a walkover—and it should be.

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  2. Daryl and his brother Darryl says:

    it’ll be a walkover—and it should be.

    Dennison is under investigation for colluding with foreign agents to fraudulently gain the Presidency. There is enough circumstantial evidence, in the public sphere, to make this a reasonable conclusion.
    Ultimately it is the SCOTUS that will determine how this case is adjudicated. Can a President be indicted? Can a President obstruct justice? Can Dennison pardon himself?
    Allowing an appointment to go forward at this time, before the Mueller investigation is complete, is perhaps the most massive conflict of interest in human history.
    I know Republicans are no longer interested in the rule-of-law. Just the same…no less than the future of the Republic is at stake here.

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  3. al Ameda says:

    Senator Jeff Flake, who is retiring from the Senate at the expiration of his current term and has repeatedly butted heads with the Trump Administration over the President’s rhetoric and other issues, says that he will not seek to block President Trump’s nominee to replace retiring Justice Anthony Kennedy

    Wow, yet, another Profile-In-Courage moment by Jeff Flake.

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  4. Daryl and his brother Darryl says:

    @al Ameda:

    Wow, yet, another Profile-In-Courage moment by Jeff Flake.

    I think that being “a flake” is taking on a new meaning.

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  5. Daryl and his brother Darryl says:

    Good morning.
    If you’re in the United States, you are waking up in a failed state- an authoritarian minority has siezed control of all branches of government after an illegitimate succession of power.
    https://twitter.com/justinhendrix/status/1012288427113447424

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  6. Kylopod says:

    Of course he won’t try to block it. SCOTUS nominations are one of the main areas (along with tax cuts) that explain why the GOP establishment continue to support Trump, and they haven’t exactly done much to push back against those areas in which they differ (as in tariffs).

    I expect it’ll go through easily. At the same time, they don’t have a huge margin for error. We should keep an eye on Joe Manchin and Joe Donnelly, who both voted for Gorsuch. If they signal they might not support the new nominee, the Dems just might have a shot at luring Susan Collins, possibly even Murkowski, to their side.

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  7. James Joyner says:

    @Daryl and his brother Darryl: The bottom line is that Trump was elected President, along with Republican majorities in the House and Senate. There’s no indication that Mueller is anywhere close to concluding his investigation or that Congressional Republicans are going to put up much resistance to Trump, much less impeach him. So that means Trump gets to President until something changes. That includes nominating Supreme Court Justices. And a Republican Senate, quite reasonably, is going to confirm any qualified Trump nominee.

    The idea that a President can pardon himself is silly and SCOTUS would rule 9-0 against him. Beyond that, a pardon wouldn’t overturn an impeachment and ouster.

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  8. Daryl and his brother Darryl says:

    @James Joyner:

    The bottom line is that

    a president who is under criminal investigation shouldn’t be allowed to nominate a justice who is likely to rule on whether he’s accountable before the law.
    Of course Congressional Republicans aren’t going to put up resistance (Conservatives would).
    That’s hardly the point.
    Shrugging your shoulders and saying that’s the way it is…is the way America ends.

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  9. MBunge says:

    @Daryl and his brother Darryl: a president who is under criminal investigation shouldn’t be allowed to nominate a justice who is likely to rule on whether he’s accountable before the law.

    So…being under criminal investigation is a bad thing? Why didn’t anyone know this before with Hillary Clinton? Think of the problems that could have been avoided.

    Mike

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  10. Daryl and his brother Darryl says:

    @MBunge:
    Same ol’ Bunge with his lame whataboutisms…used variously to defend child molestation, sexual assault, attacks on this country, and a host of other things, all in the interest of his cult leader.

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  11. James Joyner says:

    @Daryl and his brother Darryl:

    a president who is under criminal investigation shouldn’t be allowed to nominate a justice who is likely to rule on whether he’s accountable before the law.

    I think there’s sufficient evidence to impeach Trump and remove him from office. Congress clearly isn’t anywhere close to that. But Presidents get to do their entire duty even while under a cloud of investigation. Bill Clinton initiated a military strike against Iraq during the Lewinski scandal and goodness knows how many other actions during the Whitewater and other investigations. Nixon was bombing Cambodia during the Watergate investigation.

    There were no SCOTUS vacancies during Watergate, although Nixon appointed two Justices (Powell and Rehnquist) between the break-in and his second inaugural. Similarly, there were no vacancies during the Clinton scandals; his two appointments came very early. But they would of course have been allowed to do their jobs had vacancies occurred. We’re not going to leave the Kennedy seat open until Mueller finishes his work; who knows how long that’ll take?

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  12. Daryl and his brother Darryl says:

    @James Joyner:
    So what you just said is that we haven’t ever faced this issue before.
    That doesn’t mean we should just shrug our shoulders and watch it happen.
    Again…you’re right that this supine Congress isn’t going to do anything.
    Again…that is beside the point.
    It’s wrong, and it is empowering a man as dangerous to the Republic as anyone before him.

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  13. James Joyner says:

    @Daryl and his brother Darryl: Again, I think the particular fear you have is unwarranted. Nobody with a legal mind worthy of sitting on the Court is going to back a Trumpian attempt to override an impeachment with a pardon. It’s an open question whether a sitting president can be indicted but I don’t think Mueller would try that in any event.

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  14. Daryl and his brother Darryl says:

    @James Joyner:

    Nobody with a legal mind worthy of sitting on the Court is going to back a Trumpian attempt to override an impeachment with a pardon.

    I never thought the SCOTUS would appoint a president either…and yet…

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  15. Just Another Ex-Republican says:

    @Kylopod: Correct. The only way Trump won’t get an appointment of his choice is if every Dem holds firm, and Collins and Murkowski (the only pro-choice Republican Senators left that I know of) decide they can’t vote for someone they know will override Roe vs Wade.

    I’m not particularly optimistic. Though a part of me wonders if the R’s should be careful what they wish for. Abortion didn’t become controversial among evangelicals until the R’s deliberately made it so, and they’ve been deliberately pushing it for decades to get votes. If they win on that, will so many evangelicals be willing to overlook every other crappy moral trait Trump regularly displays?

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  16. By its very language, the pardon power cannot be applied to avoid impeachment:

    “The President……… shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

    U.S. Constitution, Article II, Section 2, Clause 1

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  17. @Daryl and his brother Darryl:

    a president who is under criminal investigation shouldn’t be allowed to nominate a justice who is likely to rule on whether he’s accountable before the law.

    What part of the Constitution says this?

    In any case, it’s worth noting that one of Nixon’s appointees, William Rehnquist, did recuse himself from the Nixon Tapes Case because he had previously served in the Justice Department in the Office of Legal Counsel from 1969 to 1971 before being appointed to the Court. This, of course, was before the Watergate break-in.

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  18. Gustopher says:

    @Just Another Ex-Republican:

    The only way Trump won’t get an appointment of his choice is if every Dem holds firm, and Collins and Murkowski (the only pro-choice Republican Senators left that I know of) decide they can’t vote for someone they know will override Roe vs Wade.

    If Collins or Murkowski comes out against the nominee, I think every Democrat would stand firm. Otherwise, the endangered Senators will take the politically expedient vote.

    Given that most of America is prochoice, overturning Roe v. Wade may come to haunt the Republicans for decades though.

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  19. James Joyner says:

    @Gustopher:

    Given that most of America is prochoice, overturning Roe v. Wade may come to haunt the Republicans for decades though.

    I think this is wrong on two counts. First, while Americans overwhelmingly support abortion rights, most of those who do support limitations. Bill Clinton’s famous “safe, legal, and rare” triangulation still captures the vast number of Americans. Second, support for abortion isn’t uniformly distributed. In Republican states, it’s much lower. Indeed, if it were otherwise, Roe would be irrelevant since it’s the states, not the Congress, that have limited abortion rights.

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  20. the Q says:

    The irony in retrospect is how we would now welcome another Sandra O’Connor or A. Kennedy to be nominated but at the time, we all thought that doddering old fool Reagan was destroying the fabric of society by putting such “right wing radicals” on the bench.

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  21. wr says:

    @James Joyner: “well-qualified individual”

    If by “well qualified” you mean someone who can invent a million rationalizations for transferring money and political power to those at the very top.

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  22. wr says:

    @James Joyner: “Nobody with a legal mind worthy of sitting on the Court is going to back a Trumpian attempt to override an impeachment with a pardon”

    What makes you think any of Trump’s nominees will be “worthy”? Hell, what makes Gorsuch worthy, aside from a desire to undo a century’s worth of progress?

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  23. James Joyner says:

    @wr:

    What makes you think any of Trump’s nominees will be “worthy”? Hell, what makes Gorsuch worthy, aside from a desire to undo a century’s worth of progress?

    Gorsuch has a brilliant legal mind and tremendous credentials. He’d have been, as Antonin Scalia was, a unanimous confirmation in a different era.

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  24. James Joyner says:

    @the Q:

    The irony in retrospect is how we would now welcome another Sandra O’Connor or A. Kennedy to be nominated but at the time, we all thought that doddering old fool Reagan was destroying the fabric of society by putting such “right wing radicals” on the bench.

    O’Connor was bitterly opposed by conservatives, not liberals, but was nonetheless confirmed 99-0. I have no real recollection of the Kennedy hearings, which came after the Bork and Ginsburg debacles, but he, too, was uninimously confirmed (97-0).

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  25. Jen says:

    @James Joyner:

    Bill Clinton’s famous “safe, legal, and rare” triangulation still captures the vast number of Americans.

    The “legal” part of that is key. When it starts to be made illegal–and if/when Roe v. Wade falls, it will happen quickly in several states–Republicans will own that, across the country. I’m in a swing state that happens to support abortion rights (yay, New England). But there’s no way Republicans can get out from under the fact that this will be their doing.

    One of the most supportive groups after Roe was decided was doctors. I read an article years ago (I actually think it had to do with Mitt Romney and the reason he’d been pro-choice was that he’d lost a family member to illegal abortion, I think it was the sister of one of his in-laws?) at any rate, doctors basically said that women stopped dying, practically overnight.

    I think it’s hard to really contemplate how desperate some women feel at the thought of an unplanned pregnancy. Overturning Roe won’t make abortion go away. It will just make it far, far more dangerous for women who have the misfortune to live in the wrong state.

    The difference between pre-Roe and now is the likelihood that these cases will be publicized, and these deaths, if and when they come, will be tied to Republican policies, specifically the cases like that young woman in Ireland who died after sepsis set in when the hospital refused to terminate her half-miscarried pregnancy. There’s no way to get out from under that kind of PR once it starts happening.

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  26. the Q says:

    My point James was that Reagan was HATED by liberals as the key player in destroying the New Deal and was seen at the time as a grave threat to the future of this country. And as you well know, 97-0 is a quaint thing of the past as the wingnuts have basically destroyed civil discourse in this country. And there was plenty of unease over Reagan’s appointments even though they may have passed 96-0 like Scalia, who in retrospect, was the worse of the lot. Therefore, your insinuating that these votes equated to tacit approval of the judges is wide off the mark and totally disingenuous.

    For proof of this, see this year’s nominee who might well be more moderate than Scalia and watch the 51-49 vote this round as opposed to the 96-0 “gentleman’s” vote for Scalia which in no way was liberal endorsement of his views. Gorsuch’s vote was 54-45 reflecting the new reality.

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  27. Kathy says:

    @Daryl and his brother Darryl:

    a president who is under criminal investigation shouldn’t be allowed to nominate a justice who is likely to rule on whether he’s accountable before the law.

    That won’t fly. Sorry. I wish it would.

    And it’s not because the spineless jellyfish GOP won’t buck or oppose the Cheeeto, but because the Supreme Court is not tasked to rule on such matters. Congress is, plus just the Chief Justice as judge in a Senate trial, and Roberts was not nominated by Dennison.

    It may seem to be worth, politically, to try to make it a point, but few Democratic politicians would try it. It would make them seem ignorant of politics and the law.

    I’m really sorry it won’t work, but it won’t work.

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  28. Blue Galangal says:

    @Just Another Ex-Republican:

    Though a part of me wonders if the R’s should be careful what they wish for. Abortion didn’t become controversial among evangelicals until the R’s deliberately made it so, and they’ve been deliberately pushing it for decades to get votes. If they win on that, will so many evangelicals be willing to overlook every other crappy moral trait Trump regularly displays?

    It seems to me that women’s lives and health are being sacrificed to teach “Republicans” (no longer certain such an animal exists, actually) a lesson. After all, what’s a few dead women as long as these soi-disant Republicans get a black eye in one 24 hour news cycle? It’ll be the women’s fault they’re dead, anyway, for not putting an aspirin between their knees, amirite? We’ve heard over and over that there could never be a medical reason to “kill a baby” (we all know ectopic pregnancies are #fakenews).

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  29. Ben Wolf says:

    Maybe instead of shedding crocodile tears, liberals should not have spent the last four decades relying almost entirely on courts to protect abortion rights and instead done some actual governing; that is, whenever they can manage to hold onto power longer than thirty minutes.

    But of course we couldn’t have that. Gotta be bipartisan and all so Democrats can put women on a sacrificial alter.

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  30. Kylopod says:

    @Ben Wolf:

    Maybe instead of shedding crocodile tears, liberals should not have spent the last four decades relying almost entirely on courts to protect abortion rights and instead done some actual governing; that is, whenever they can manage to hold onto power longer than thirty minutes.

    Right, because legislation is far harder to reverse, and far less subject to the whims of whoever is in power at any particular moment, than Court decisions.

    /s

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  31. Ben Wolf says:

    @Kylopod: Yes, Captain Feckless, legislation makes it considerably more difficult. And multiple acts of legislation make it moreso. But when liberals are given a choice of protecting the vulnerable or collaborating with a predator, they choose the latter every time. So they left the problem to a judiciary they knew was being warped by billionaire fascist cash because they didn’t really give a shit.

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  32. Ben Wolf says:

    @Kylopod

    Right, because legislation is far harder to reverse, and far less subject to the whims of whoever is in power at any particular moment, than Court decisions.

    The goddman stupidity of this statement. The idea that “they’d try to do it anyway so why make it hard for them” somehow exhonorates you.

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  33. gVOR08 says:

    @Just Another Ex-Republican:

    Abortion didn’t become controversial among evangelicals until the R’s deliberately made it so, and they’ve been deliberately pushing it for decades to get votes. If they win on that, will so many evangelicals be willing to overlook every other crappy moral trait Trump regularly displays?

    To be fair, it wasn’t just Republicans. The holy roller TV preachers pitched in once they saw how much money they could raise.
    Republicans used to realize abortion was much more useful to them as an issue than it would be as an accomplishment. But conservatives always come to believe their own bullshit, and now a lot of them really do want to repeal Roe v Wade. Repeal of Roe v Wade would make it a much more relevant issue for liberals, but no, the fundies would still be blind to Trump’s moral failings, he’d still be one of the tribe.

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  34. wr says:

    @James Joyner: “Gorsuch has a brilliant legal mind”

    In the same way that Scott Pruitt has a brilliant ecological mind.

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  35. wr says:

    @Ben Wolf: But Ben didn’t vote for Jill Stein, people! Nope, not a chance — not even once!

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  36. James Joyner says:

    @wr:

    “Gorsuch has a brilliant legal mind”

    In the same way that Scott Pruitt has a brilliant ecological mind.

    Gorsuch is extraordinarily qualified for his job in terms of intellect, training, and experience. He has an undergrad from Columbia, a JD from Harvard, and a doctorate from Oxford. He clerked for an Appeals Court judge and two Supreme Court Justices (Byron White and Anthony Kennedy, neither of whom were ideologues). He’s served in private law practice, the highest levels of the Justice Department, and as an Appeals Court judge–all before the age of 50. That you disagree with his views on the law doesn’t diminish his qualifications.

    Pruitt, by contrast, is a corrupt hack who had no credentials that qualified him for his job.

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  37. Jim Brown 32 says:

    @James Joyner: A resume and “brilliance” are mutually exclusive attributes.

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