Senate Judiciary Chair Cancels Judicial Nomination Hearing

November 30, 2018 Updated: November 30, 2018

Senate Judiciary Chairman Charles Grassley (R-Iowa) canceled a Nov. 29 hearing on judicial nominees, putting more than two dozen Trump-nominated judges on hold with just two weeks before Congress adjourns for the year.

Confirming federal judges has been a top priority of Senate Majority Leader Mitch McConnell (R-Ky.). But outgoing GOP Sen. Jeff Flake (R-Ariz.) appears to be making good on an earlier threat to block judicial nominations unless the Senate passes his legislation to protect special counsel Robert Mueller.

Grassley canceled the Nov. 29 hearing the previous evening after Senate Republicans refused to allow the special counsel protection bill sponsored by Flake and Sen. Chris Coons (D-Del.) to receive a floor vote.

Flake is an outspoken critic of President Donald Trump, and fears the president’s recent appointment of Acting Attorney General Matthew Whitaker as an existential challenge to Mueller’s Russia investigation that increasingly appears to have Trump in its sights.

“The Attorney General has been fired and somebody has been placed, like I said, with hostility toward the Mueller probe. We ought to be more concerned here and I just can’t understand why we aren’t,” Flake said in Nov. 28 evening CNN interview.

The narrow distribution of power in the Senate gives Flake unusual leverage not just from his seat on the Senate Judiciary Committee, but in the chamber as a whole.

Republicans enjoy only a one-seat advantage on the Judiciary Committee. Flake’s defection to the block-voting Democratic minority, or even an abstention from voting, would sink any chance of a Trump-nominated judge from receiving a “favorable” committee vote.

In the full Senate, Republicans maintain control with a slim 51-49 majority. If Flake voted with the unified Democratic opposition, then the 50-50 tie would require Vice President Mike Pence to cast a deciding vote.

That already happened on Nov. 28, when Pence was forced to break a tie on a procedural vote to advance the nomination of Thomas Farr. Trump nominated Farr to fill a federal judgeship in the U.S. District Court for the Eastern District of North Carolina. The seat has been vacant longer than any other current opening across the country.

Flake joined all 49 members of the Democratic caucus to block Farr, not just as a consequence of his stance on protecting the Mueller probe, but in observance with Democratic allegations of racism.

In 2011, Farr’s law firm was hired by Republicans in the North Carolina General Assembly to defend redistricting boundaries drawn by the state legislature. In 2016, a federal court ruled the boundaries were gerrymandered.

Farr also helped defend a North Carolina voter ID law that required identification to be submitted before would-be voters could cast a ballot. The same law prohibited the controversial practice of same-day registration and voting, as well as voting outside of one’s assigned geographic precinct. Both measures were designed to prevent voter fraud, but have been tagged as racially discriminatory.

“With Thomas Farr’s nomination, we’re being asked to confirm the go-to guy in North Carolina if you need a lawyer to defend voter suppression,” said Minority Leader Chuck Schumer, the Senate’s highest-ranking Democrat, on Nov. 29.

Hours later, Flake wrote on Twitter, “I’ll vote no on final passage next week.”

Farr’s nomination was sunk Thursday evening when South Carolina GOP Sen. Tim Scott, an African American, said he would also vote against Farr, thereby changing the balance to 50-51 in favor of Democrats. Scott previously voted with Pence and Senate Republicans to advance Farr’s procedural nomination.

“Senator Tim Scott has done a courageous thing, and he’s done the right thing,” Schumer wrote on Twitter. “Thomas Farr has been involved in the sordid practice of voter suppression for decades and never should have been nominated, let alone confirmed to the bench. Thankfully, he won’t be.”

According to the U.S. Constitution, presidential nominations are subject to the “advise and consent” of the Senate before they can be confirmed.

Nominations that fall under the jurisdiction of the Judiciary Committee include the U.S. Supreme Court, the U.S. Courts of Appeals, the U.S. District Courts, and the Court of International Trade, as well as those relating to the Department of Justice and the Department of Homeland Security, among others.

Thursday’s hearing slated six Circuit Court judges and 15 District Court judges for approval, in addition to other federal court nominees. But for the cancellation, they would have been prepared for a confirmation floor vote either within the next two weeks or early next month.

Currently, there are 137 federal judicial vacancies, with 69 pending nominations.

Grassley has not rescheduled another nomination hearing as of the morning of Nov. 30. The Epoch Times contacted Grassley’s office for comment but has not yet received a response.

Majority Leader McConnell said he remains committed to the confirmation process despite a rapidly closing window this year. McConnell could still bring the Trump nominees to the floor for an up-or-down chamber vote even with a Judiciary Committee “unfavorable” recommendation. But GOP leaders seem eager to avoid it.

“The Senate is focused on wrapping up this year’s remaining priorities: getting more of the president’s team in place, confirming well-qualified nominees to our federal courts, and attending to the pressing legislative business the American people expect us to handle,” McConnell tweeted Nov. 28.

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