Sen. Jeff Flake says he will not vote to confirm any judicial nominees unless the Senate holds a vote on legislation to protect special counsel Robert Mueller from being fired. Majority Leader McConnell has said he won’t hold such a vote because it’s not necessary. He says there is no realistic prospect of Mueller being fired.
Flake’s statement is significant because, unfortunately, he sits on the Senate Judiciary Committee. Without Flake’s support, judicial nominees won’t have enough votes to clear the Committee.
As I understand it, nominees can still advance to the Senate floor if the Senate votes to permit this. But getting around the Judiciary Committee in this fashion would require the vote of every other Republican Senator. It’s possible that one or more GOP member would balk. Sen. Susan Collins, who backs the Mueller protection bill, comes to mind.
The real problem with a bill to “protect” Mueller isn’t that it’s unnecessary. If that were the only problem, why not pass it and get a heap of judges confirmed with no fuss?
The real problem is that the Mueller protection bill is likely unconstitutional. Except for confirming Justice Department nominees, Congress has no proper role in telling the Executive branch who its prosecutors will be. Nor can it dictate the president’s decisions on the retention/firing of Executive branch personnel.
It might be tempting to pass the Mueller protection bill anyway. Then, in the unlikely event that Trump sacks Mueller, the administration could ignore the legislation and have its constitutionality determined in court — ultimately by the Supreme Court.
However, Senators have sworn to uphold the Constitution. They should not vote for unconstitutional bills.
Thus, if Flake won’t budge, the best course, I think, is to try to work around him. If that fails, the backlog of judges can be confirmed beginning in January when Flake will be an ex-Senator.