The Senate confirmed Benjamin Flowers to the U.S. Court of Appeals for the Sixth Circuit on July 22 by a vote of 49 to 46, on near-party lines. Flowers — a former solicitor general of Ohio and a law clerk to Justice Antonin Scalia — fills the seat of Jeffrey Sutton, the George W. Bush appointee and one of the most influential conservative appellate judges of his generation, who is taking senior status. The nomination moved quickly: announced April 27, confirmed within three months.
The record Flowers brings to the bench is not a quiet one. As an advocate he filed briefs arguing that the Fourteenth Amendment does not extend birthright citizenship to the children of undocumented immigrants, in support of the administration’s executive order on the question — an order the courts have so far blocked. Groups tracking the nomination noted that in his written confirmation responses he declined to say who won the 2020 election. He is the second judge the president has placed on the Sixth Circuit this term; counting the six named in the first term, eight of the circuit’s sixteen active seats now belong to his appointees — half the bench that hears federal appeals from Michigan, Ohio, Kentucky and Tennessee.
More personal than the first
The first-term judicial project was famous for its outsourcing. Nominees came off curated lists, through a conventional pipeline — circuit clerkships, solicitors general offices, appellate boutiques — and were selected for a judicial philosophy rather than a personal history. The emerging second-term pattern is different in kind: it increasingly draws from lawyers who litigated the president’s own causes, his orders and his election disputes. The distinction is worth stating plainly. A judge selected for a philosophy owes a debt to a movement. A judge selected from the president’s own litigation record owes something harder to name, and no one will ever be able to measure which debts are being paid.
Then there is the arithmetic of time. Presidencies run in four-year units; Sutton held this seat for twenty-three years. The judges confirmed this summer can expect to be deciding cases in the 2050s. Administrations end. Circuit judges remain, inconveniently, for everyone’s successors.
What to watch
The Sixth Circuit hears election-administration disputes out of Michigan, a state that decides presidencies. Recusal in the federal appellate courts is largely self-administered: whether the second-term class sits on cases descended from their own advocacy will be decided by the judges themselves, one motion at a time. That practice — not any single confirmation vote — is where the durability of this project will be tested.
