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In Flake’s war on Trump tariffs, judicial picks are caught in the crossfire

Sen. Jeff Flake (R-Ariz.) speaks with reporters Tuesday ahead of the weekly policy luncheons at the Capitol.
Sen. Jeff Flake (R-Ariz.) speaks with reporters Tuesday ahead of the weekly policy luncheons at the Capitol. (Aaron P. Bernstein/Getty Images)

Sen. Charles E. Grassley considers confirming federal judges “a top priority” — so big that, as chairman of the Judiciary Committee, he plans to ask Senate leaders for more money for his panel, so filling the Supreme Court seat about to be vacated by Justice Anthony M. Kennedy doesn’t slow down the confirmation of lower-court nominees.

“Both the Republicans and the Democrats will have the resources to work on whoever would be sent up from the White House for Supreme Court and still continue to do what we’re doing on circuit and district judges,” Grassley said prior to Kennedy’s announcement Wednesday.

But the Iowa Republican has a surprising roadblock in his bid to continue confirming judges: Sen. Jeff Flake (R-Ariz.), who has seized control of the judicial confirmation process in a complicated move to try to defeat President Trump’s new tariff policy.

Senators express concern over President Trump’s tariff proposal on March 6. (Video: Jordan Frasier/The Washington Post)

Flake has taken the one area of unmitigated success for Trump — Democrats and Republicans acknowledge he is packing the courts — and balled it up into a tangled mess that has slowed down the confirmation pace.

After more than a week of concealed motives, Flake made clear over the weekend that his objection earlier this month to a circuit-court nominee from Georgia was indeed part of his new policy to block these appellate judges from confirmation. In exchange, he wants a Senate vote on an amendment to rein in Trump’s power to impose tariffs on foreign goods.

“A few of us will stand up and say let’s not move any more judges until we get a vote, for example, on tariffs,” he said Sunday on ABC’s “This Week.”

Corker unveils bill to check Trump’s tariff authority, rebuffing a personal request from the president

Flake expressed confidence that he would win this battle, particularly after an announcement by Harley-Davidson that it would move some jobs offshore as a result of the expected retaliatory tariffs from other nations.

“There’s going to be a groundswell from people across the country who are seeing jobs go out,” he said in an interview. “And I think it’s just going to be too difficult, greatly, for our leadership to say we’re not going to have a vote on it.”

To be clear, Flake has many allies in his bid to block Trump from imposing higher tariffs, but he has no other public support on the means he is using to try to force that vote.

“I feel strongly about getting our judicial nominees confirmed, so I’m not holding any judicial nominees at this point, but I’m also adamant about getting a vote on this,” said Sen. Patrick J. Toomey (R-Pa.), who is helping lead the anti-tariff push.

Instead of targeting judicial selections, Toomey and Sen. Bob Corker (R-Tenn.) have targeted another sacred legislative cow — the farm bill — in their bid to force a vote on their amendment.

Their amendment would require congressional approval when the president enacts tariffs by citing national security matters, which the president did earlier this month by hitting allies from Canada, Mexico and the European Union with tariffs on aluminum and steel imports.

It got blocked from being considered as part of a defense policy bill, for parliamentary concerns, but Corker said no sector will be hit more than agricultural exports, making this week’s consideration of the farm bill the best vehicle for their amendment.

“The president’s doing more damage to the ag community than any farm bill could ever do to help,” he said.

But on Wednesday, they were blocked from offering the amendment.

Corker and Flake, both retiring, have had rocky relationships with Trump and at times have been in open public feuds with him. They say Trump’s protectionist moves have started a trade war that will lead to higher domestic prices and reduced jobs from a decline in exports.

“We have talked, many of us, till we’re blue in the face on tariffs and NAFTA renegotiation and trade in general, trying to move this White House away from its protectionist stance,” Flake said.

But other Republicans are hesitant to do anything to undercut Trump as he negotiates with allies on the North American Free Trade Agreement and with competitors such as China.

“I think he’s horse trading,” Sen. John Neely Kennedy (R-La.) said after a heated discussion at Tuesday’s Republican lunch.

“No resolution,” Flake said.

That leaves Flake’s judicial blockade in effect, potentially for some time if the effort fails to get resolution on the farm bill.

Trump is transforming the judiciary, but he has yet to take aim at the court that annoys him the most

Flake is using a basic tool to block the Judiciary Committee’s consideration of circuit-court judges — his vote.

He is a member of the committee, which is divided between 11 Republicans and 10 Democrats, sharply along conservative and liberal ideological lines. So he has informed Grassley he will vote no on any Trump circuit-court nominee, in committee and on the Senate floor. Assuming all Democrats vote no, the result would be a negative vote in the committee, all but guaranteeing the nomination dies there.

With Supreme Court nominations, tradition dictates the full Senate gets to cast a vote even if the committee has a negative recommendation. But, if Flake wanted to go fully nuclear, he might be able to hold a high-court nominee hostage, because the current Senate makeup has 50 Republicans and 49 members of the Democratic caucus — as Sen. John McCain (R) remains home in Arizona battling brain cancer.

Flake is not sure whether his judicial-tariff blockade applies to the Supreme Court.

“If there were a vacancy there? I hadn’t thought of that. I haven’t thought of that,” he said Tuesday.

Grassley noted that his panel has already sent more than 40 judicial nominees to the full Senate, enough for the chamber to spend the rest of the summer confirming them, so Flake’s temporary blockade will not cause too much of a headache.

However, that judicial pipeline has fewer than a handful of nominees to the circuit courts, the step just below the Supreme Court. “That’s a top priority for me,” Grassley said.

Now, he needs Flake’s permission to move ahead on that priority.

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