Why it Matters

The Senate Judiciary Committee hearing on Wednesday, May 20 exposed the rawest fault lines yet in the debate over judicial independence under President Trump, with Democrats accusing two circuit court nominees of rehearsing scripted answers with White House counsel and declaring their responses "disqualifying." The hearing, held at the Dirksen Senate Office Building, featured nominees Benjamin M. Flowers for the Sixth Circuit and Matthew A. Schwartz for the Second Circuit, alongside Don Richard Berthiaume, Jr., nominated to be DOJ Inspector General. Trump has publicly stated he wants judges "loyal to the person that appointed them," a posture directly at odds with the Senate's constitutional advice and consent role.

The Big Picture

The hearing reflects a months-long escalation over Trump's judicial selection process. Democrats have argued that nominees are being chosen for loyalty to the president rather than fidelity to the Constitution. Republicans, led by Chairman Sen. Chuck Grassley (R-IA), have fired back that Democratic questioning is hypocritical, pointing to Justice Ketanji Brown Jackson's own confirmation testimony, in which she declined to comment on the 2020 election results. Grassley opened with a visual aid, a poster displaying Jackson's quote, and argued nominees have been treated like "monkeys" and "puppets" by the progressive media.

Schwartz, a Sullivan & Cromwell partner, is Trump's third personal attorney nominated to a circuit court seat, following Emil Bove and Justin Smith. He continues to represent Trump in two pending cases, including the appeal of his 34-count New York business records conviction. Flowers, as Ohio Solicitor General, filed an amicus brief challenging Pennsylvania's 2020 election administration and, earlier this year, filed a Supreme Court brief supporting Trump's birthright citizenship executive order, which has been rejected by every court to consider it.

What They're Saying

The central dispute was over judicial independence, and the room grew tense early.

The sharpest exchange came when Blumenthal pressed both nominees directly on who won the 2020 election. Both declined, citing the judicial ethics code and Justice Jackson's precedent. Blumenthal bristled, noting that Jackson was a sitting federal judge when she gave that answer, and these nominees are not. "I know Justice Jackson," he said. "You're no Justice Jackson." He then revealed that both nominees had conducted practice sessions, known as "moots," with White House counsel before appearing. Flowers confirmed this. Schwartz confirmed it as well. Blumenthal called the answers "canned, rehearsed, practiced" and said the nominees were "repeating by rote what you have been told to say."

Sen. Mike Lee (R-UT), who introduced Schwartz and is a strong supporter of both nominees, found himself in an unexpected confrontation with Flowers over the nominee's published writings on "departmentalism," the theory that each branch of government has an independent duty to interpret the Constitution. Lee pressed Flowers on whether this meant the president could ignore Supreme Court rulings. Flowers argued courts are binding on parties to a case, but the executive is not necessarily bound in future cases. Lee fired back: "This business of ignoring a federal court order is nonsense. It's nonsense on stilts." Flowers ultimately clarified he would never advise a client to defy a court order, but the exchange underscored how Flowers' own legal writings created complications even for Republican allies.

Sen. Cory A. Booker (D-NJ) pressed Schwartz on financial entanglements, confirming that Trump's Save America PAC reportedly owed Sullivan & Cromwell nearly $400,000. Schwartz acknowledged his compensation is partly tied to firm revenues from clients he represents. Booker asked whether the committee deserved to know the full scope of financial obligations between the president and his nominee. Schwartz said he would resign his partnership if confirmed and make no money from any further Trump representation.

Sen. Mazie K. Hirono (D-HI) confronted Flowers on his defense of Ohio's six-week abortion ban, citing the case of a 10-year-old rape victim who was forced to travel to Indiana for care after being three days past Ohio's limit. She also pressed him on a published piece in which he wrote that "timid textualism" was "unacceptable for the conservative movement" seeking to "kneecap the administrative state." Flowers denied those were his personal views, saying he was describing the views of young lawyers he had encountered at law schools.

A bipartisan letter from 39 current and former state solicitor generals supporting Flowers was entered into the record by Grassley, who noted the group called him "exceptionally qualified" and said they held "very different political and judicial views."

Political Stakes

For Schwartz, the confirmation hearing exposed an unprecedented conflict: a nominee actively representing the president who nominated him, in two live criminal and civil appeals, while simultaneously seeking a lifetime appointment to the court that could hear those very cases. His pledge to recuse himself from Trump-related matters will be difficult to enforce and impossible to monitor comprehensively. For Flowers, the abortion record and his departmentalism writings give Democrats a sustained line of attack in a post-Dobbs political environment, particularly in the Midwest states covered by the Sixth Circuit.

For the administration, confirming both nominees advances a documented second-term strategy to reshape the federal appellate courts. If Schwartz is confirmed, he would be Trump's sixth appointee to the Second Circuit. For Senate Democrats, now in the minority, the hearings serve a dual purpose: creating a record for oversight and generating electoral messaging ahead of the 2026 midterms.

Yes, But

Republicans have a substantive counter-argument that Democrats have struggled to fully rebut. Grassley's central point, that Justice Jackson herself declined to comment on the 2020 election during her confirmation, is factually accurate. The judicial ethics code does apply to nominees, not just sitting judges. Sen. Lee invoked the code directly, reading from the text during a point of personal privilege after Blumenthal's broadside. The nominees' refusal to answer is consistent with decades of confirmation hearing practice, regardless of which party's nominees are in the chair.

What's Next

Both circuit court nominees are expected to advance to a committee vote, likely in June, on a party-line basis. Berthiaume's nomination drew less partisan heat and may attract some bipartisan support, given his career IG background. Democrats are expected to submit written questions for the record, known as QFRs, demanding specificity on Schwartz's recusal commitments and Flowers' views on abortion-related cases. Sen. Sheldon Whitehouse (D-RI) separately raised an unrelated concern during the hearing: a U.S. attorney in Wyoming had nine criminal indictments thrown out on May 15 for grand jury misconduct, and that attorney was confirmed three days later in an en bloc Senate vote without senators being notified of the court's findings.

The Bottom Line

The hearing made plain that for this administration, the circuit courts are a political project, and the confirmation process has become the arena where Democrats, lacking the votes to block nominees, are making their case to the public instead.

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