SENATE STUNS WASHINGTON WITH DRAMATIC 49–46 VOTE — TRUMP REACTS
Senate Confirms Trump’s Benjamin Flowers to Sixth Circuit—But the Fight Was Over Whether His Advocacy Predicts His Judging
President Donald Trump has secured another lifetime appointment to one of the country’s federal appeals courts.
But the debate over Benjamin Flowers was never really about whether he had enough appellate experience.
It was about what senators believed that experience revealed about the kind of judge he would become.
The Senate confirmed Flowers to the U.S. Court of Appeals for the Sixth Circuit on July 22 by a 49–46 vote.
Every senator voting for him was a Republican.
Every senator voting against him was a Democrat or an independent who caucuses with Democrats.
Flowers will fill the seat of Judge Jeffrey Sutton, who announced plans to step back from regular active service.
President Trump formally sent Flowers’ nomination to the Senate on April 27.
The position matters well beyond Ohio.
The Cincinnati-based Sixth Circuit hears federal appeals arising from Ohio, Michigan, Kentucky and Tennessee.
And because circuit judges serve under Article III’s “good Behaviour” protection, the appointment is effectively for life unless Flowers resigns, retires or is removed through the constitutional process.
That makes every appellate confirmation a long-term exercise of presidential power.
A president may leave office after four years.
A circuit judge appointed during that term can continue shaping federal law for decades.
Trump understood that during his first administration.
His second administration is continuing the same strategy.
Flowers became the ninth federal appellate judge confirmed during Trump’s second term by the time of the July vote.
But describing the confirmation simply as another conservative judicial victory misses why Flowers attracted so much Democratic opposition.
Flowers has spent much of his career arguing some of the most politically consequential legal disputes of the past several years.
He served as Ohio’s solicitor general from 2019 through 2023.
Before that, he worked at Jones Day.
He clerked for Ninth Circuit Judge Sandra Ikuta and later for the late Supreme Court Justice Antonin Scalia.
He also argued three cases before the Supreme Court while serving Ohio.
The most prominent was the challenge to the Biden administration’s COVID-19 vaccination-or-testing requirement for large employers.
Flowers argued on behalf of states challenging OSHA’s authority to impose the rule.
The Supreme Court ultimately stayed the OSHA requirement in a 6–3 decision.
That victory became an important part of Flowers’ reputation among conservative lawyers.
But his record also includes litigation involving abortion, elections, executive power and birthright citizenship.
Those cases gave Democrats a very different reason to focus on him.
The clearest example emerged during his May 20 confirmation hearing.
Sen. Richard Blumenthal of Connecticut repeatedly asked Flowers who won the 2020 presidential election.
Flowers would not answer using that exact formulation.
Instead, he invoked an answer previously given by Justice Ketanji Brown Jackson and said that, “legally speaking,” Joe Biden had been certified.
When Blumenthal pressed again, Flowers said he would continue following what he called Jackson’s precedent.
That answer immediately became the most politically explosive moment of the hearing.
Democrats saw it as unnecessary evasiveness.
Biden unquestionably received the electoral votes necessary to win the 2020 election and became president.
From their perspective, a judicial nominee should have been able to state that uncomplicated fact without retreating to the word “certified.”
Blumenthal went further.
He suggested Flowers’ answer sounded rehearsed and accused him of being afraid to give a direct answer that might anger Trump.
That was Blumenthal’s interpretation.
The subsequent written record provides more detail about how Flowers actually prepared.
Flowers acknowledged that he knew the 2020 question was likely to arise.
He said he spoke with colleagues and previous nominees, participated in mock confirmation hearings, watched earlier hearings, reviewed answers from other judicial nominees and studied the judicial Code of Conduct and the Twelfth Amendment.
He therefore did prepare his answer.
That part is not disputed.
But Flowers denied that anyone instructed him to avoid saying Biden won.
He said he independently concluded that the response he gave was appropriate.
And when later asked whether he believed he would suffer professional consequences if he simply said Trump lost or Biden won, Flowers answered:
“No.”
That complicates both sides’ preferred narrative.
Democrats can accurately say Flowers avoided giving a direct answer to an extraordinarily simple question.
Republicans can accurately say he acknowledged Biden was certified as the winner and explained his answer by invoking ethical caution previously used by another judicial nominee.
What cannot be established from that exchange alone is that Flowers secretly believes Trump won in 2020.
He did not say that.
Nor does the record establish Blumenthal’s accusation that fear of Trump dictated the answer.
Flowers said the opposite.
Senate Judiciary Committee Chairman Chuck Grassley defended Flowers by arguing that Democrats were applying inconsistent standards.
Grassley pointed to Jackson’s previous statement that judicial nominees should avoid publicly weighing in on subjects of political debate.
Flowers explicitly relied on the same example.
That comparison has limitations.
Jackson had been asked about whether she had publicly or privately commented on election results.
Flowers was asked the much more direct factual question of who won the 2020 election.
Democrats argued those questions were not equivalent.
Flowers nevertheless maintained that the same ethical principle justified his restraint.
His written responses later made his position somewhat clearer.
Asked whether Trump lost the 2020 election, Flowers wrote:
“Joe Biden was certified the winner of the 2020 election.”
He declined to give additional views on alleged fraud or irregularities, again citing the judicial Code of Conduct.
Flowers was more direct about another election-related question.
Asked whether Trump could legally be elected to a third presidential term after winning in 2016 and 2024, Flowers said no.
He wrote that Trump had been elected twice and that the Twenty-Second Amendment prevents him from being elected again.
That matters because it provides a broader picture of his confirmation testimony.
Flowers did not refuse every politically sensitive proposition involving Trump.
He drew his own line around questions he believed involved disputed election integrity while giving direct answers about the constitutional two-term limit.
Whether senators found that distinction convincing largely depended on what they already thought a nominee should be willing to say.
The 2020 election was not Democrats’ only concern.
Flowers’ record on abortion received significant attention as well.
While serving as Ohio solicitor general, Flowers represented the state in litigation involving Ohio’s law prohibiting most abortions after embryonic cardiac activity can be detected, often around six weeks of pregnancy.
The law became nationally prominent after the Supreme Court overturned Roe v. Wade.
In 2022, a 10-year-old Ohio rape victim traveled to Indiana for an abortion because her pregnancy was beyond the limit imposed by Ohio law.
The case became one of the most emotionally charged examples in the national abortion debate.
Flowers later represented Ohio as the state sought to revive enforcement of its abortion law.
During litigation before the Ohio Supreme Court, he argued that the state suffered irreparable harm while a lower-court order prevented the law from operating.
His argument was institutional and legal: when a duly enacted state law is enjoined, the state claims injury from being unable to enforce it.
But because the law involved abortion, the phrase “irreparable harm” took on a very different political meaning.
Flowers told the Ohio Supreme Court that abortions occurring while the statute was blocked constituted harm to the state because those procedures would have been prevented if the law were being enforced.
Democratic senators used that history to question how Flowers viewed the consequences for women and girls affected by the law.
His response was that rape itself—particularly rape of a child—causes profound harm.
But Flowers also defended his work representing Ohio.
That distinction is important.
A state solicitor general does not necessarily personally agree with every law he is required to defend.
The solicitor general represents the state’s legal position in appellate litigation.
Flowers’ argument therefore establishes that he defended Ohio’s abortion restrictions.
It does not by itself establish every personal moral or policy view he holds about abortion.
That same distinction applies elsewhere in his record.
Lawyers routinely represent governments, corporations and individuals whose policies or conduct they may not personally endorse.
But judicial confirmation hearings routinely examine those cases anyway.
The reason is not that representation automatically proves ideological agreement.
It is that senators use a nominee’s choices, arguments, writings and professional history to predict how that person may approach legal questions once the lawyer becomes a judge.
Flowers gives them unusually rich material.
He has not limited himself to representing Ohio.
After leaving government, he continued participating in major conservative legal disputes through private practice.
Reuters reported that he supported Trump’s effort to restrict birthright citizenship in Supreme Court litigation and had previously filed a brief relating to Pennsylvania’s administration of the 2020 presidential election.
He has also written publicly about legal interpretation.
In a June 2025 post, Flowers argued for what he called more “aggressive textualism” and used Trump’s “Make America Great Again” slogan while discussing conservative legal methodology.
That became another subject of Democratic questioning.
Asked afterward whether he intended to become a “MAGA judge,” Flowers gave an unambiguous answer.
“No.”
He also wrote that, if confirmed, he would follow the Code of Conduct’s requirements concerning impartiality and political activity.
And he emphasized an important institutional difference between advocacy and judging.
A Supreme Court justice has substantial discretion over which cases to accept and, in some circumstances, over whether precedent should be reconsidered.
A circuit judge has much less freedom.
Flowers said he would be bound by Supreme Court precedent and by controlling Sixth Circuit law.
That is the formal answer every appellate nominee is expected to give.
The harder question is how much a judge’s methodology matters when precedent leaves room for interpretation.
Textualism does not mechanically generate one inevitable answer to every case.
Judges still disagree about what statutory text means.
They disagree about the relevance of history.
They disagree about standing, executive authority, remedies and constitutional structure.
And appellate courts frequently decide questions for which Supreme Court precedent does not provide a perfect factual match.
That is why presidents care so much about judicial appointments.
If political philosophy had no relationship at all to judging, presidential administrations would have little reason to spend so much political capital selecting nominees whose jurisprudential views align with their own.
Trump has been particularly explicit about seeking judges with conservative approaches to constitutional and statutory interpretation.
Flowers fits comfortably within that project.
He clerked for Scalia.
He has participated extensively in conservative legal circles.
He has litigated major cases favored by Republican attorneys general and conservative organizations.
And his public writings have engaged directly with debates inside the conservative legal movement.
But that does not justify the opposite simplification either.
A conservative judge is not automatically a Trump loyalist.
Nor does a judge appointed by a Democratic president automatically issue rulings because of political hostility toward Trump.
That is where some of the rhetoric surrounding the confirmation goes beyond what the evidence can establish.
Trump has suffered significant defeats in federal district courts during his second administration.
His administration has also won appeals and obtained relief from the Supreme Court in a number of cases.
Those outcomes can establish that lower courts and appellate courts disagreed about the law.
They do not, without additional evidence, establish the personal political motives of the judges whose decisions were reversed.
Appellate reversal is a normal part of the judicial system.
Democratic-appointed judges reverse Republican-appointed judges.
Republican-appointed judges reverse Democratic-appointed judges.
Panels containing judges appointed by presidents of both parties sometimes rule unanimously against an administration.
Judges appointed by Trump have also ruled against Trump.
So a useful argument about the judiciary has to be narrower than saying every adverse ruling is partisan.
The more defensible Republican argument is that judicial philosophy matters and that Trump is entitled, with Senate consent, to nominate judges whose approach to the Constitution and federal statutes differs from that of Democratic nominees.
The more defensible Democratic argument is that lifetime nominees should demonstrate independence from the president who selected them—particularly when that president is personally involved in unusually large amounts of litigation.
Flowers’ hearing became a proxy fight over exactly that issue.
Blumenthal looked at Flowers’ 2020 answer and saw caution turning into deference toward Trump.
Grassley looked at the same answer and saw a nominee refusing to be drawn into political theater.
Neither interpretation changes the underlying words.
Flowers said Biden was certified as the winner.
He declined to go further.
He acknowledged preparing that answer beforehand.
He said nobody ordered him to give it.
And he said he would not suffer professional consequences for plainly saying Trump lost.
The Senate ultimately sided with Flowers.
But only Republicans supplied the votes.
The final 49–46 confirmation was completely partisan among senators who participated.
Four Republicans—Ted Budd, Mitch McConnell, Lisa Murkowski and Thom Tillis—did not vote, as did Democratic Sen. Chris Coons.
Every other Republican voted yes.
Every Democrat who voted said no, joined by independents Angus King and Bernie Sanders.
That result itself says something about modern judicial politics.
A nominee with Flowers’ qualifications once might have attracted significant bipartisan support based on appellate experience alone.
By 2026, judicial nominations—especially circuit nominations—are increasingly judged through the larger political consequences of who controls the courts.
Flowers’ supporters nevertheless included lawyers whose endorsements were based on professional experience rather than simply partisan identity.
Reuters reported that former Supreme Court clerks, current and former state solicitors general and dozens of Jones Day partners submitted support for him.
Jones Day colleagues told the Judiciary Committee that their experience practicing with Flowers convinced them he would be the kind of judge Americans should want deciding their cases.
That support deserves to be considered alongside the criticism.
So does his résumé.
Flowers graduated from Ohio State University and the University of Chicago Law School.
He clerked at both the circuit and Supreme Court levels.
He worked in major appellate litigation at Jones Day.
He served four years as Ohio solicitor general.
And he argued successfully before the Supreme Court in one of the most important administrative-law disputes of the Biden presidency.
Those credentials explain why Republicans saw little reason to reject him.
They do not answer Democrats’ concerns about his jurisprudence.
That is the distinction underlying most judicial confirmation battles.
Professional qualification asks whether someone has the legal ability and experience to serve.
Judicial philosophy asks what that person is likely to do with that ability.
Independence asks a third question.
Will that person follow the law when the result conflicts with the interests of the president or political movement that helped put him on the bench?
Flowers says he will.
His written answers repeatedly state that he would follow binding Supreme Court and Sixth Circuit precedent.
He said he would obey the judicial Code of Conduct.
He said federal courts can bind the Trump administration.
And when asked what should happen if the executive branch ignores a court order, Flowers said courts possess tools including sanctions and contempt proceedings.
Those statements are significant given the broader conflict between Trump and the federal judiciary.
They do not guarantee how Flowers will decide future cases.
No confirmation testimony can.
Once confirmed, federal judges no longer answer to the president who appointed them.
Trump cannot fire Flowers because he dislikes one of his rulings.
Flowers does not face reelection.
His Article III tenure is deliberately structured to give him independence from both political branches.
That is why the confirmation itself is more consequential than the rhetoric surrounding it.
Trump has secured another appellate judge whose legal background and interpretive philosophy broadly fit the conservative judicial movement.
Democrats failed to stop him.
Flowers now has a lifetime seat on a court that decides major disputes involving four states.
But the real test of the arguments made during his confirmation comes later.
Republicans say Flowers will be a principled textualist who follows the Constitution rather than political pressure.
Democrats fear his advocacy record shows a judge likely to push federal law in a strongly conservative direction.
His past work gives both sides evidence for their expectations.
It does not yet give either side evidence about his actual judicial record.
He did not have one before being confirmed.
Now he will.
So the Senate vote settled one question.
Benjamin Flowers is a judge on the Sixth Circuit.
What it did not settle is the question that dominated his hearing.
May you like
When a politically consequential case involving Trump, abortion, elections or executive power eventually reaches his court, will Flowers look like the conservative advocate senators spent weeks debating—or the independent Article III judge he promised to become?
That answer will come from his opinions, not his confirmation hearing.
