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WASHINGTON — The Senate on Tuesday confirmed Benjamin Flowers to a lifetime seat on the U.S. Court of Appeals for the Sixth Circuit by a vote of 49 to 46, elevating the former Ohio solicitor general to the federal bench over Democratic objections to his record and his refusal to say who won the 2020 election.
Flowers, an Upper Arlington attorney and partner at Ashbrook Byrne Kresge Flowers LLC, fills the seat vacated by Judge Jeffrey Sutton. President Donald Trump nominated him to the court, which covers Ohio, Michigan, Kentucky and Tennessee.
At Flowers’ May 20 confirmation hearing, Democrats pressed him on facts that Trump disputes and got answers they called evasive.
When Connecticut Democrat Richard Blumenthal asked Flowers to name the winner of the 2020 election, Flowers responded that “legally speaking, Joe Biden was certified” before Blumenthal cut him off.
Blumenthal told Flowers his answers sounded rehearsed.
“Above all, a federal judge must be independent, without fear or favor, and your fear, apparently, of Donald Trump, is so much that you practiced with the White House before you came here and rehearsed this answer, and are repeating by rote what you’ve been told to say,” Blumenthal said, calling that conduct disqualifying.
Judiciary Committee Chairman Charles Grassley, an Iowa Republican, defended Flowers against the criticism, arguing Democrats applied a double standard.
He cited U.S. Supreme Court Justice Ketanji Brown Jackson’s confirmation testimony, in which she said, “It would be inappropriate for me to publicly weigh in to any subject of political debate.”
Utah Republican Mike Lee read from the Code of Conduct for United States Judges to argue the same ethics rules bind nominees and sitting judges.
A graduate of Ohio State University and the University of Chicago Law School, Flowers clerked for Ninth Circuit Judge Sandra Ikuta and then for Justice Antonin Scalia before spending several years at Jones Day. As Ohio’s 10th solicitor general, he argued three cases before the U.S. Supreme Court, including the successful challenge to OSHA’s COVID-19 vaccine mandate.
“Flowers resembles most of Trump 2.0’s appellate nominees, whom Mike Davis, the Leader of the Article 3 Project and a Trump judicial selection consigliere, characterizes as battle-hardened,” said University of Richmond law professor Carl Tobias. “However, Flowers also resembles many Trump 1.0 appellate nominees, who are ideologically conservative, active members of the Federalist Society, and practiced at large national firms.”
In a Tuesday speech on the Senate floor, Democratic leader Chuck Schumer of New York said Flowers “checks virtually every box the MAGA right expects from its judges.”
Democrats also challenged Flowers over his defense of Ohio laws during his time as solicitor general.
Minnesota Democrat Amy Klobuchar cited his defense of Ohio’s six-week abortion ban, which had no exceptions for rape or incest, and the case of a 10-year-old rape victim who was forced to travel to Indiana for care after passing the six-week limit by three days.
Flowers told her that “anyone who’s raped, particularly a child, suffers irreparable harm. There’s no doubt about that,” but said his job as solicitor general required him to defend the law.
Republicans countered with their own record of support. U.S. Sen. Jon Husted, a Columbus-area Republican, introduced Flowers at his hearing as someone with a “well-deserved, I would say sterling reputation as a thoughtful, talented attorney.”
A letter from 39 current and former state solicitors general backed Flowers ahead of the vote, saying that in the cases Flowers handled, he “combined his superior legal acumen with a steadfast commitment to the rule of law.”
A separate letter from more than a dozen state attorneys general, led by former Ohio Attorney General Dave Yost, called Flowers’ “exceptional qualifications, commitment to the rule of law, and steadfast adherence to textualism” the marks of “an outstanding candidate for this important position.”
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