SENATE PULLS IT OFF WITH 49-46 VOTE – TRUMP CAN’T BELIEVE IT...
Senate Confirms Benjamin Flowers to the Sixth Circuit—But the Bigger Fight Was Over What Judicial Independence Requires
Federal judicial confirmations have become one of the clearest ways a president can shape policy long after a particular political fight has ended.
That is especially true for the federal courts of appeals, where judges hold lifetime appointments and decide thousands of cases that never reach the Supreme Court.
President Donald Trump added another appellate judge to that project last month.
On July 22, the Senate confirmed Benjamin M. Flowers to the U.S. Court of Appeals for the Sixth Circuit by a 49–46 vote. Every Republican who voted supported him. Every Democrat and independent who voted opposed him.
The date matters because the confirmation is not a new development from this week. Flowers was confirmed on a Wednesday nearly four weeks before the latest round of commentary about the vote.
He will take the seat being vacated by Judge Jeffrey Sutton on the Cincinnati-based court, which hears appeals from Ohio, Michigan, Kentucky, and Tennessee.
The vote itself was straightforward.
The argument over what Flowers’ confirmation says about the judiciary was not.
Supporters see him as exactly the kind of experienced conservative appellate lawyer Trump promised to put on the federal bench: a former state solicitor general, a former Supreme Court clerk, and an advocate who has already argued major constitutional disputes at the nation’s highest court.
Critics see something different in the same record. They argue that his answers during the confirmation process raised questions about whether he was willing to state basic facts when doing so might put him at odds with Trump.
The clearest example came during his May 20 Senate Judiciary Committee hearing.
Sen. Richard Blumenthal of Connecticut asked Flowers who won the 2020 presidential election.
Flowers did not answer with the simple formulation that Joe Biden won. Instead, he said that, legally speaking, Biden was certified as the winner and invoked an answer Justice Ketanji Brown Jackson had given during her own confirmation process about avoiding public commentary on politically disputed subjects.
Blumenthal treated that response as evidence of evasion and questioned whether Flowers had rehearsed an answer designed to avoid contradicting Trump.
That criticism became one of the central Democratic arguments against the nomination.
But the record is more specific than either side’s shorthand suggests.
In written responses submitted after the hearing, Flowers acknowledged that he had prepared for the election question because it had become common at judicial confirmation hearings. He said he spoke with colleagues and past nominees, participated in mock hearings, watched prior hearings, reviewed earlier written responses, and consulted the Code of Conduct for United States Judges and the Twelfth Amendment.
He also said he independently concluded that the answer he gave was the correct one and denied that he believed he would suffer professional consequences for directly saying Trump lost or Biden won.
That does not eliminate the disagreement.
It defines it more accurately.
Democrats were not disputing that Biden was certified. They were asking why a nominee for a lifetime judgeship would not simply say that Biden won an election whose electoral votes were counted and certified by Congress.
Republicans argued that the demand itself was inappropriate because judicial nominees routinely decline to opine on politically charged questions that could later become entangled with litigation.
Judiciary Committee Chairman Chuck Grassley made that argument before Flowers testified.
Grassley pointed to Jackson’s earlier statement that it would be inappropriate for a judicial nominee and sitting judge to publicly weigh in on a subject of political debate. He argued that Democrats were applying a different standard to Trump nominees when they demanded categorical answers about the 2020 election.
Sen. Mike Lee made a related argument based on the judicial code of conduct and the expectation that nominees avoid political activity.
The comparison is not perfect, however.
Jackson’s cited answer concerned whether she had publicly or privately commented on election results. Flowers was being directly asked at a confirmation hearing to identify the winner of a completed election.
That is why the exchange remains politically potent even after the confirmation vote.
Supporters can reasonably argue that Flowers was following a cautious nominee convention: say what the constitutional process established, avoid broader commentary, and do not create statements that could later be characterized as political.
Critics can reasonably respond that identifying the winner of a completed presidential election is a factual proposition, not a policy position, and that refusing the direct formulation can itself create doubts about independence.
The Senate resolved the nomination without resolving that argument.
Flowers’ legal background helps explain why the fight extended beyond one answer about 2020.
He graduated from Ohio State University and the University of Chicago Law School, clerked for Ninth Circuit Judge Sandra Ikuta, and later clerked for Justice Antonin Scalia.
He worked at Jones Day before becoming Ohio’s solicitor general in 2019, a position he held until 2023. He later returned to private practice and became a partner at Ashbrook Byrne Kresge Flowers LLC.
As Ohio solicitor general, Flowers represented the state in major appellate litigation.
One of his most prominent victories came in the challenge to the Biden administration’s COVID-19 vaccine-or-test rule for large employers.
Flowers argued for Ohio and other states before the Supreme Court in January 2022. The Court ultimately stayed the Occupational Safety and Health Administration rule, concluding that the challengers were likely to succeed on their argument that OSHA lacked authority to impose such a sweeping requirement.
That record is one reason conservatives view Flowers as an accomplished appellate advocate rather than merely an ideological nominee.
It is also why Democrats examined his work for Ohio so closely.
Abortion was another major subject at the confirmation hearing.
Sen. Amy Klobuchar questioned Flowers about his work defending Ohio abortion restrictions, including the state’s six-week abortion law, which at the time it was enforced did not contain exceptions for rape or incest.
The issue carried particular weight because of the 2022 case of a 10-year-old rape victim who traveled from Ohio to Indiana for an abortion after she was more than six weeks pregnant.
Flowers responded that anyone who is raped, particularly a child, suffers irreparable harm.
The more important legal distinction is what his role was at the time.
Flowers was not Ohio’s attorney general and he did not enact the law. He was the state solicitor general, the official responsible for representing Ohio in significant appellate litigation under Attorney General Dave Yost.
A government lawyer’s defense of a statute therefore does not, by itself, establish that the lawyer personally agrees with every policy choice contained in that statute.
At the same time, a nominee’s litigation record is a legitimate part of the Senate’s advice-and-consent inquiry, especially when the nominee is being considered for a court that will hear cases involving abortion, administrative power, voting, immigration, and other politically contested issues.
That is the more useful way to understand the disagreement over Flowers.
Republicans emphasized professional role and legal craft: he represented clients, argued the law, won major cases, and pledged to follow binding precedent as a judge.
Democrats emphasized the choices embedded in that record: the arguments he advanced, the legal theories he defended, and the answers he declined to give when senators tested how independent he would be from the president who nominated him.
Neither side needed to prove that Flowers had already decided future cases in order to make its argument.
That is not how judicial confirmations work.
A nominee cannot ethically promise a result in a future case. Senators instead examine experience, writings, litigation positions, temperament, and answers about legal method to make a prediction about how that nominee will exercise judicial power.
The same caution applies to a broader claim often made around Trump’s second-term legal battles.
The fact that a lower-court ruling is later reversed does not by itself prove that the original judge acted from partisan hostility. Appellate courts reverse lower courts for many reasons, including disagreements over jurisdiction, statutory interpretation, constitutional doctrine, evidentiary standards, and the appropriate scope of relief.
Political criticism of judges is part of American public life. Evidence of political motive requires more than the fact that one court disagreed with another.
What is clear is that Trump and the Republican Senate have continued to move appellate nominees onto the bench at a consequential pace.
Flowers became the ninth appeals-court judge confirmed during Trump’s second term at the time of his confirmation.
His arrival also strengthens an already Republican-appointed majority on the Sixth Circuit, a court that frequently decides important disputes arising from four large and politically diverse states.
That makes the confirmation more consequential than the cable-news argument surrounding one hearing exchange.
Flowers will now be judged less by what he said as a nominee than by what he writes as a judge.
The questions will be concrete: how closely he follows Supreme Court and Sixth Circuit precedent, how he handles cases involving the Trump administration, how he approaches statutes he personally criticized or defended as a lawyer, and whether litigants across the ideological spectrum receive the same legal analysis.
The 49–46 vote settled one issue.
Benjamin Flowers won Senate confirmation to a lifetime seat on the Sixth Circuit.
What it did not settle is the question that dominated his hearing: whether his careful answers reflected the restraint expected of a judicial nominee or an unwillingness to say something politically inconvenient to the president who selected him.
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That question cannot be answered by another confirmation-hearing soundbite.
It will be answered by his opinions on the bench.
