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Time To Take Jeff Flake Off The Senate Judiciary Committee

We’ve been asking when Senate Majority Leader Mitch McConnell will rid us of anti-conservative Senator Jeff Flake ever since Flake threatened to stymie the confirmation of Trump nominated judges unless the Senate took a vote on his patently unconstitutional “protect Mueller” bill.

Now our friends at theconservativetreehouse.com report that Flake has followed-through on his threat to block more than 20 judicial nominees; forcing the Senate Judiciary Committee to abandon six federal circuit court Flakeoutnominees, and 15 federal district court nominees.

Sen. Chuck Grassley (R-Iowa) announced yesterday that he is canceling votes on nearly two dozen of President Trump’s judicial nominees that were expected to come up in the Judiciary Committee this week.

The notification from the Judiciary Committee didn’t specify when, or if, the committee votes on the nominations would be rescheduled.

Republicans hold a 51-49 majority in the Senate allowing them to move Trump's nominees despite Flake as long as the remaining 50 Republican senators remain united.

But, as Jourdain Carney noted in an article for The Hill, on the Judiciary Committee Republicans are limited to a 11-10 majority meaning they need Flake's support unless they can get help from Democrats.

"We can vote on all the people who cleared the committee," said Sen. John Cornyn (R-Texas), the No. 2 Republican senator and member of the Judiciary Committee. "But in terms of getting a vote out of committee we need his help."

Carney reports that Flake reiterated earlier Wednesday that he remains committed to opposing nominees until he gets a vote on the Mueller protection bill. He tried to get consent to schedule a vote on the bill Wednesday but was blocked by Sen. Mike Lee (R-Utah), who warned that the legislation was unconstitutional.

The resolution, which cleared the Judiciary Committee earlier this year, would protect Mueller, or any other special counsel, in the event he is fired, but the bill has stalled amid opposition from GOP leadership.

The bill would codify Justice Department regulations that say only a senior department official could fire Mueller or another special counsel.

The legislation Flake supports clearly violates the Appointments Clause of the Constitution and thus is unconstitutional. Its adoption could actually endanger Mueller’s actions by rendering them unconstitutional from the day the legislation took effect wrote Steven G. Calabresi, Clayton J. and Henry R. Barber Professor of Law at Northwestern University Pritzker School of Law.

The defenders of the legality of the Mueller appointment contend that he is an inferior officer who is supervised by Acting Attorney General Matthew Whitaker or by Deputy Attorney General Rod Rosenstein. The U.S. Supreme Court has held in two cases that to be an inferior officer, you must have a boss who can fire you at any time.

However, as Calabresi noted, you cannot be “independent” of your boss and still be “inferior” to him. Indeed, Yale law professor Akhil Amar, considered by many to be the greatest constitutional law scholar of his generation, testified to this effect before the Senate Judiciary Committee, but still Flake has persisted in his demand.

In his article for The Hill Calabresi cites Edmond, v. United States (1997), in which the Supreme Court held that to be an inferior officer it was necessary that one be supervised by a boss who can control what you do and who can fire you. The Supreme Court unanimously joined Justice Antonin Scalia’s opinion in Edmond, and Justice David Souter concurred, arguing (correctly, in Calabresi’s view) for an even narrower construction of the inferior officer appointment clause.

The court revisited the issue of what was required to be an inferior officer in Free Enterprise Fund v. Public Accounting Oversight Board (2010). Chief Justice John Roberts’s opinion for the court heartily endorsed the test of officer inferiority used in Edmond v. United States. The court again said one cannot be “independent” and “inferior” at the same time observed Calabresi. 

These two precedents were affirmed as good law by Justice Elena Kagan in her six-justice majority opinion this past June in Lucia v. Securities and Exchange Commission (SEC). There are at least six, and possibly nine, justices who would hold Sen. Flake’s legislation to be unconstitutional Calabresi believes.

It is clear to us that Flake’s actions are not motivated by a desire to legislate good policy or even to assure that Special Council Mueller can proceed with his investigation unhindered by presidential interference.

Flake, like several Democrats on the Judiciary Committee, is merely grandstanding and using the Committee to establish a base for a divorced-from-reality run against President Trump in 2020.

Come January, Flake is out-of-office and irrelevant, so as we see it, it is time for Senate Majority Leader Mitch McConnell to remove Flake from the Senate Committee on the Judiciary and replace him with a sane member, Senator Tom Cotton of Arkansas comes immediately to mind.

Cotton would be there to vote Judicial nominees out of Committee and move them to the Floor for a vote, thereby keeping the process flowing right up to the end of the 115th Congress.

Naturally, such a move would infuriate Senator Flake, and undoubtedly lead to more destructive “NO” votes, but at 51 to 49, all tie votes would be broken by Vice President Mike Pence, who can be relied upon to vote “AYE” to confirm the all-important judges.

Of course, this will probably step on Vice President Pence’s hopes for a relaxing and enjoyable Christmas holiday season, but Pence, a solid cultural conservative, understands the importance of confirming conservative, originalist judges to the federal courts.

In 2014, when Democrats lost the Senate majority, Democratic Senator Harry Reid kept the Senate in session to confirm dozens of Obama-nominated liberal judges. Senate Majority Leader Mitch McConnell has said he will do the same and move to confirm all President Trump’s judicial nominees by the end of the year to eliminate a backlog caused by Democratic delay tactics.

“We are not going to leave any judges behind at the end of the year, when we get through this Congress,” McConnell told the Washington Examiner.

We urge Senator McConnell to follow through on that commitment and to use whatever tactics are necessary to get those judges confirmed, even if it means sidelining Flake and putting the heat on any other recalcitrant members of the Senate’s Republican Conference.

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