Republicans are looking for a way to solve Arizona Republican Sen. Jeff Flake's demand for a floor vote on legislation to protect special counsel Robert Mueller, but so far no other Republican has joined his threat to block judicial nominees until he gets a vote.
As a result, Flake has the ability to stop the roughly two-dozen nominees awaiting a vote in the Senate Judiciary Committee, where Republicans have an 11-10 majority, but he can't stop Senate Majority Leader Mitch McConnell from confirming another 30-plus federal judicial nominees awaiting votes on the Senate floor, where the Republicans hold a two seat advantage, 51-49.
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Two potential Republican allies for Flake, Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, said Thursday that they support the special counsel legislation, but they did not indicate they'd join Flake in using judges as leverage to force such a vote.
"I believe strongly the bill should be brought to the floor in light of the President's firing of Jeff Sessions, his installation of Matt Whitaker, and also his tweet this morning, all of which are disturbing to me," Collins said. "I'm not sure I see a link between holding up judges and getting a vote on this bill. There may be other ways. I've talked to others of my colleagues who are also concerned, and I hope we can prevail on the majority leader to just bring the bill to the floor."
Murkowski said she was willing to talk to Flake about his effort, but hasn't done so yet.
"I want to find out what the path forward is for this right now," Murkowski said. "I have said I'm supportive of that (legislation). How we do that is the question I think needs to be answered right now. I'll talk to Sen. Flake about what he's doing. But we haven't had much of a conversation yet."
Flake is making a renewed push for the legislation to protect the special counsel, which would allow his firing to be challenged in court, in the wake of Trump's decision to replace Sessions with Whitaker as acting attorney general, who has been criticized for his prior comments attacking the Mueller investigation and because he was never confirmed by the Senate for any role.
Flake's threat is on hold for the next week while the Senate is in recess for the Thanksgiving holiday, but he'll likely have his first chance to vote against more than a dozen judicial nominees in the Judiciary Committee the following week.
Senate Judiciary Chairman Chuck Grassley, an Iowa Republican, acknowledged that the nominees will probably be stuck unless the matter with Flake was resolved. Grassley said he disagreed with Flake's methods, though he noted he supported the underlying bill, which passed his committee in April.
"I would hope though that we'd see it as two separate things. One, there's a legitimacy to move judges and it's something we ought to do to make the judicial branch productive," Grassley told reporters Thursday. "So, I would disagree with him on how he's doing it, but I wouldn't disagree with his objective."
Senate Republicans have started discussing a potential compromise with Flake in order to avert the judicial impasse, according to Senate Majority Whip John Cornyn.
Cornyn said the matter was discussed at the Republican Senate policy lunch on Thursday, and one option under consideration was a "sense of the Senate" floor vote on a non-binding but symbolic measure.
"Somebody mentioned a possible sense of the Senate resolution, since there were objections raised on the constitutionality of such a bill and objections raised on the probability that the House would ever pass it or the President would ever sign it," Cornyn said, referencing two Republican objections to the bill.
Other Republicans say they don't need see the need for the bill, because they don't believe the President will try to fire Mueller.
"If you did do that bill, all you're doing is getting into a big hassle," said Sen. Orrin Hatch, a Utah Republican.
McConnell is likely to want to push through a number of judicial nominees when the Senate returns for the end of the lame-duck session, and Flake's opposition could mean that Vice President Mike Pence would be needed at the Capitol to break 50-50 ties on the votes.
Of course, McConnell could also just wait out Flake until January, when Flake will depart the Senate and Republicans will expand their vote cushion in the Senate.
While his job is debated, Whitaker has started making the rounds on Capitol Hill. He met Thursday with Republican Sen. Lindsey Graham of South Carolina, who could become chairman of the Senate Judiciary Committee next year.
Asked what Whitaker told him about the Mueller investigation, Graham said: "He's just going to follow regular order. He has no concerns right now."
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