Senate Confirms Trump Judicial Nominee To 6th Circuit
Senate Confirms Benjamin Flowers 49-46 - After a Fight Over 2020, Abortion and What Judicial Independence Requires
The former Ohio solicitor general has won confirmation to the Sixth Circuit, but he has not yet taken the seat. Jeffrey Sutton's senior-status date is October 1, and the Federal Judicial Center still lists Flowers' commission as not yet issued.
The vote is over. The argument around the nomination is not.
Benjamin Michael Flowers has cleared the Senate.
On July 22, 2026 - a Wednesday, not Tuesday - senators confirmed President Donald Trump's nominee to the U.S. Court of Appeals for the Sixth Circuit by a 49-46 vote.
Every senator who voted yes was a Republican. Every Democrat who voted voted no, as did independents Angus King and Bernie Sanders. Five senators did not vote.
That makes the confirmation look like a familiar partisan judicial fight.
The more interesting story is what the fight was actually about.
Democrats argued that Flowers' answers about the 2020 presidential election and his record in conservative litigation raised questions about whether he would act independently of Trump.
Republicans answered that judicial nominees should avoid turning confirmation hearings into political commentary and emphasized Flowers' appellate experience, Supreme Court advocacy and conservative legal credentials.
Both descriptions capture part of the record.
Neither is complete without one especially revealing fact: in private during the 2020 election litigation, Flowers called a major Trump-backed lawsuit a 'terrible idea' that could damage the credibility of any attorney general's office that joined it.
That makes the later hearing dispute much harder to reduce to a simple story about loyalty or election denial.
One correction comes before everything else: Flowers is confirmed, but he has not yet taken Sutton's seat
The confirmation did not create an immediate vacancy on the Sixth Circuit.
Judge Jeffrey Sutton announced that he would take senior status effective October 1, 2026.
The federal judiciary's vacancy records identify Flowers as the nominee confirmed to that future vacancy.
The Federal Judicial Center currently states that Flowers was confirmed on July 22 but that his commission has not yet been issued.
So it is accurate to say the Senate confirmed Flowers to a lifetime Article III seat.
It is premature to write as though he immediately began hearing Sixth Circuit cases after the vote.
That distinction will disappear once Sutton's transition occurs and the appointment is completed, but as of August 20 it still matters.
The opening partisan claim about Trump's courtroom losses goes too far
The political case for confirming conservative judges is often framed around Trump's repeated losses in federal district courts.
The administration has unquestionably faced a very large volume of adverse rulings during its second term.
But saying those rulings generally result from Democratic-appointed judges acting on political opposition is not something the public record establishes.
Recent reviews of Trump litigation have found rulings against the administration from judges appointed by presidents of both parties.
Appellate courts and the Supreme Court have reversed or narrowed some lower-court decisions, especially disputes over the scope of injunctions.
A reversal, however, does not by itself prove partisan bias by the judge below.
Courts reverse each other for many reasons: standing, remedy, statutory interpretation, constitutional analysis, factual records and differences over the governing standard of review.
The stronger, fact-based point is simpler.
Trump and the Republican Senate are using available vacancies to shape federal law for decades, and circuit judges matter enormously because the courts of appeals resolve the overwhelming majority of federal appeals without Supreme Court review.
Who Benjamin Flowers is
Flowers was born in 1987 and built the kind of resume that makes a circuit-court nomination unsurprising in a Republican administration.
He graduated from Ohio State University and the University of Chicago Law School.
After law school, he clerked for Judge Sandra Segal Ikuta on the Ninth Circuit and then for Justice Antonin Scalia at the U.S. Supreme Court.
He practiced privately, including at Jones Day, before joining the Ohio Attorney General's Office.
Flowers became Ohio's 10th solicitor general in 2019 and served in that role until 2023.
As solicitor general, he represented Ohio before the U.S. Supreme Court, the Sixth Circuit and the Ohio Supreme Court.
His most nationally visible victory came in the challenge to the Biden administration's OSHA COVID-19 vaccination-or-testing mandate for large employers.
Flowers argued for the states before the Supreme Court in January 2022. The Court stayed the OSHA rule days later.
He later returned to private practice as a partner at Ashbrook Byrne Kresge Flowers.
He has also been active in the Federalist Society, a fact supporters see as evidence of a developed conservative legal philosophy and opponents view as part of a broader ideological judicial project.
The hearing's viral moment was one question: who won in 2020?
At Flowers' May 20 confirmation hearing, Sen. Richard Blumenthal asked a question whose factual answer is not disputed by election authorities: who won the 2020 presidential election?
Flowers did not answer with the two words Democrats wanted.
He said it would be inappropriate for him to comment on election outcomes except to note that, 'legally speaking, Joe Biden was certified.'
Blumenthal pressed him repeatedly and treated the answer as evidence that Flowers was unwilling to state an obvious fact because Trump would dislike it.
Flowers responded that he was following what he viewed as the precedent of then-Judge Ketanji Brown Jackson and the ethical norm that judicial nominees should avoid public political commentary.
The clash became one of the defining moments of his nomination.
Democrats called the answer evasive.
Republicans called it judicial restraint.
The written record that followed makes the dispute more specific.
Flowers later acknowledged that he prepared for the question - and denied anyone ordered him to dodge it
In written answers after the hearing, Flowers said he knew the 2020 question was asked at nearly every modern confirmation hearing and prepared for it.
He said he spoke with colleagues and past nominees, watched previous hearings, reviewed prior written responses, studied the Code of Conduct for United States Judges and participated in mock hearings - the Washington practice sometimes called 'murder boards.'
That confirms Blumenthal's basic observation that the answer had been practiced.
It does not confirm Blumenthal's stronger accusation that the White House dictated the answer because Flowers feared Trump.
Flowers wrote that he independently decided the answer was the proper one.
Asked whether he believed he would suffer professional consequences for directly saying Biden won or Trump lost, Flowers answered: 'No.'
That leaves the dispute where it belongs.
The record establishes preparation.
It does not establish the nominee's motive with the certainty Blumenthal's rhetoric suggested.
The Ketanji Brown Jackson comparison is real - and imperfect
Judiciary Committee Chairman Chuck Grassley defended Flowers by pointing to written answers Ketanji Brown Jackson gave during her 2022 Supreme Court confirmation process.
Jackson had said that, consistent with the judicial code and positions taken by prior nominees, it would be inappropriate to weigh publicly on subjects of political debate, including questions about election results.
Flowers explicitly cited that language.
Blumenthal identified an important difference: Jackson was already a sitting federal judge when she gave those answers, while Flowers was a private lawyer and nominee.
Flowers answered that nominees have long been expected to follow the same ethical caution that applies to sitting judges.
That is best understood as a confirmation norm rather than a magic rule that makes every factual election question forbidden.
Nominees routinely decline to discuss pending cases, disputed legal issues or matters likely to come before them.
Whether the identity of the certified and inaugurated winner of a completed presidential election should fall in the same category is the actual disagreement.
The source article's separate criticism that Jackson once declined to define the word 'woman' has no meaningful bearing on whether Flowers' 2020 answer was appropriate.
The hidden 2020 record complicates the idea that Flowers was simply carrying Trump's election narrative
Flowers' own conduct in December 2020 is the most revealing evidence in the entire dispute.
When Missouri officials discussed joining Texas' effort to challenge the presidential results in four states, Flowers wrote internally that everyone he had spoken with considered the suit a 'terrible idea' that would tarnish the credibility of any office that became involved.
Ohio did eventually file an amicus brief in Texas v. Pennsylvania with Flowers as counsel of record.
But Ohio did not endorse Texas' requested remedy.
The state urged the Supreme Court to clarify the constitutional role of state legislatures under the Electors Clause while expressly expressing skepticism about Texas' demand that federal judges effectively set aside already-completed election results and direct state legislatures toward new electors.
The Supreme Court rejected Texas' case for lack of standing.
That record does not make Flowers politically neutral.
It does show that his 2020 position was more legally differentiated than the simple claim that he helped Trump overturn the election.
He supported litigating an Electors Clause question while privately criticizing the sweeping Texas suit and opposing its requested remedy.
Abortion produced a different kind of confirmation fight
Sen. Amy Klobuchar and other Democrats also pressed Flowers about litigation he handled as Ohio solicitor general defending abortion restrictions.
The most emotionally difficult example involved Ohio's 2019 law barring most abortions after embryonic cardiac activity could be detected, often around six weeks.
The law contained no rape or incest exception, though it included medical-emergency and serious-health-risk language.
After Dobbs allowed the restriction to take effect in 2022, a 10-year-old rape victim who was six weeks and three days pregnant traveled from Ohio to Indiana for an abortion.
The case became a national example of the practical consequences and uncertainty surrounding the Ohio law.
At his confirmation hearing, Flowers said that anyone who is raped - particularly a child - suffers irreparable harm.
He then emphasized that his job as Ohio solicitor general had been to defend duly enacted state legislation.
That is a more accurate description than the source's statement that Flowers was 'the state's attorney general.'
Dave Yost was the attorney general. Flowers was the state's chief appellate advocate.
The 'I was only the lawyer' defense is valid - but it is not a complete answer to confirmation scrutiny
There is a genuine professional distinction between an advocate and a judge.
Government lawyers routinely defend statutes they did not write and may not personally support.
Flowers made exactly that point in his written answers, saying that a judge takes on a new role and must apply law and precedent without regard to positions advanced for former clients.
That principle is central to legal practice.
It also does not mean senators are forbidden from examining which cases a nominee chose to emphasize, how the nominee argued them or what those arguments reveal about legal methodology.
A solicitor general is not merely a courtroom messenger.
The office makes strategic judgments, helps shape appellate positions and often decides which legal theories a state will press.
The fair conclusion is therefore neither that every argument Flowers made for Ohio was necessarily his personal belief nor that his litigation record is irrelevant.
It is part of the evidence senators use to predict how he may approach statutes, constitutional text, precedent and government power.
Replacing Jeffrey Sutton is generational renewal, not a partisan flip
Flowers' appointment is consequential, but the party mathematics of the seat should be described correctly.
He is replacing Jeffrey Sutton, a George W. Bush appointee and one of the best-known conservative judges on the federal appellate bench.
So Trump is not converting a Democratic-appointed seat into a Republican-appointed one.
He is replacing an older Republican-appointed conservative with a much younger Republican-appointed conservative.
That matters because Article III judges can serve for decades.
Reuters reported at the time of confirmation that Flowers was the ninth appellate judge confirmed during Trump's second term and would become the Sixth Circuit's 11th Republican-appointed active judge; eight of those Republican-appointed judges would be Trump appointees.
The Sixth Circuit hears federal appeals from Ohio, Michigan, Kentucky and Tennessee.
Its cases regularly involve voting rights, abortion, guns, labor law, environmental rules, religious liberty, criminal law and challenges to federal executive power.
Replacing Sutton with Flowers therefore preserves a conservative seat while extending its likely influence far into the future.
The vote was even more partisan than 'largely along party lines'
The phrase 'largely along party lines' understates what happened on final confirmation.
The 49 yes votes were all Republicans.
The 46 no votes included every Democrat who cast a vote plus independents King and Sanders.
No Democrat voted for Flowers.
No Republican voted against him.
Four Republicans - Ted Budd, Mitch McConnell, Lisa Murkowski and Thom Tillis - did not vote, and Democrat Chris Coons also did not vote.
That is a party-line confirmation among senators who actually took a side.
The committee vote had foreshadowed the same divide: Flowers was reported favorably 12-10, with all voting Republicans in favor and all voting Democrats opposed.
The Trump judicial project is moving even while the administration keeps losing some cases
The larger political importance of Flowers goes beyond one appellate seat.
Trump's first term made judicial appointments a defining achievement, especially because of three Supreme Court appointments and a large number of circuit judges.
His second administration is again trying to move nominees through a Republican-controlled Senate before the 2026 midterms can potentially change the chamber's balance.
On August 19, Trump announced another group of nine federal judicial nominees.
That is the institutional answer Republicans are making to an environment in which the administration is litigating hundreds of disputes over immigration, spending, executive authority, speech and regulation.
The answer is not that every judge who rules against Trump is partisan.
It is that presidents have enormous long-term influence when Senate majorities allow them to fill Article III vacancies.
Flowers is a particularly clear example because he is 39, has a deeply developed appellate record and is entering a court that will decide major federal questions long after Trump leaves office.
The most revealing fact is the one that does not fit either party's clean narrative
Democrats wanted Flowers to say plainly that Joe Biden won in 2020.
He would not use that formulation.
Republicans defended the refusal as an application of judicial ethics.
That produced a simple television conflict: one side saw fear of Trump; the other saw disciplined restraint.
Flowers' actual record is less convenient for both.
He prepared carefully for the question and deliberately chose a narrow answer.
He said nobody threatened professional consequences if he answered differently.
He had previously written privately that a sweeping Trump-backed election lawsuit was a terrible idea.
Yet he also litigated constitutional election questions that aligned with conservative concerns about changes to voting rules.
He defended restrictive abortion laws as Ohio's solicitor general, but he says that advocacy does not dictate how he will judge.
And he has already demonstrated the kind of aggressive conservative appellate lawyering that made him attractive to the Trump White House in the first place.
The Senate has now made its judgment.
Once Jeffrey Sutton takes senior status and Flowers receives his commission, the more important test begins.
May you like
The question will no longer be what Benjamin Flowers says in a confirmation hearing.
It will be what he writes when the cases are his to decide.
