Benjamin Flowers’ writing makes clear why Trump wants him on the Sixth Circuit
Flowers is a fierce defender of Trump — and would continue to defend him from the bench.
Last month, when Trump announced he was nominating Benjamin Flowers to the U.S. Court of Appeals for the Sixth Circuit, I highlighted some of his recent work in private practice — work that Flowers proudly promoted on his X account. It included his Supreme Court brief in support of Trump’s position in the birthright citizenship case, his relentless opposition to DEI, his extreme anti-voting rights views, and his extensive work to exclude transgender people from all areas of life.
Since last year he has also been a member of Teneo — a confidential network, promising to “crush liberal dominance,” that is open only to members in their 40s or younger. Leonard Leo is the network’s chairman.
All of that — in addition to his anti-civil rights (including anti-abortion) work as solicitor general of Ohio — was almost certainly enough to land him a nomination. After all, he told Bloomberg Law last year — with respect to judicial nominations — that “This administration wants people who have a track record of showing that they’re not afraid to take positions that are bold” and “when it’s contrary to what used to be the mainstream view of how law should be done.” He said that “state solicitors general, just by virtue of the position, do have a lot of experience doing that.”
But Flowers, who will appear before the Senate Judiciary Committee tomorrow, also writes a lot — and it’s not difficult to see why this administration was compelled to nominate him.
Flowers published an October 2025 speech he delivered to the Toledo Bar Association, which opens up this way:
I’ll begin with my conclusion, before I digress and work my way back to it. My conclusion is this: in the first ten months of President Trump’s second administration, the federal district courts, not the President or anyone else, have posed the greatest threat to the rule of law. To borrow a phrase from President Reagan, in our present crisis, the district courts are not the solution to our problem; the district courts are the problem.
Good thing he wasn’t nominated to a district court!
Flowers said that there’s been a “steady stream of legally indefensible judgments” and that “the behavior of too many district courts suggests a dangerous misunderstanding of the judicial role—one in which courts alone get to say what the law is…” Later in the piece, he wrote that “they are regularly exceeding their constitutional role.”
He then weighed in on some pending cases, writing that the president “is dutybound to enforce the Constitution according to his best interpretation, and he interprets it not to bestow birthright citizenship on the children of illegal aliens.” Given the brief that Flowers filed as counsel of record — and his offensive language in this speech — he obviously agrees with Trump’s interpretation. He also said that “Humphrey’s Executor has long been subject to criticism by jurists and non-jurists alike. President Trump, correctly, agrees with the critics.” And Flowers agrees with Trump that the 90+ year-old precedent should be overturned.
Flowers ended his speech by saying that “The lawless conduct of the district courts poses an immense threat to our constitutional order.” He then quoted Justice Antonin Scalia’s dissent in Obergefell v. Hodges, which criticized the majority’s opinion legalizing marriage equality as a “decision that is unabashedly based not on law.”
In another post titled “Some thoughts on the future of textualism,” Flowers began by saying this:
The conservative legal movement has experienced immense success in recent years. To name just a few prominent examples, Roe v. Wade, race-based admissions, and Chevron—the case that required deference to the legal interpretations of unelected bureaucrats—are dead. Limits on the President’s power to fire his subordinates are dying. I could go on.
Flowers’ piece argues that textualism — which he says “rests on the premise that the words in statutes, constitutions, and others [sic] legal texts mean what they meant when they were written down” — must be aggressively applied, and that “We must condemn timid textualism when we see it.” He said that “Timid textualism will not, to borrow a phrase, Make America Great Again. Only judges committed to applying textualism aggressively are up to the task.”
He listed several reasons why some people are frustrated with textualism, including because of instances of bad textualism. He cited Justice Neil Gorsuch’s 2020 opinion in Bostock v. Clayton County as the best example. While the majority opinion “claims the mantle of textualism,” Flowers wrote that “Bostock was wrongly decided from a textualist standpoint.” As he claimed, “At the time of Title VII’s adoption, no one understood ‘sex’ to mean anything other than biological sex; the word did not encompass sexual orientation or gender identity.” Flowers said:
While the frustration with cases like Bostock is warranted, it hardly justifies abandoning textualism. Judges are people and people make mistakes. No matter what theory judges abide by, they will occasionally get cases wrong. Abandoning textualism in favor of something else will not fix this problem.
Flowers, who as a judge would clearly be hostile to the rights of LGBTQ+ people, wrote that “we must demand the appointment of textualists who will apply their principles aggressively” and that textualists already on the bench must “do their part.” Based on this post, it’s not difficult to imagine the kind of jurist that Flowers — who is 39 years old — will be if confirmed for life to a powerful federal appellate court.
In June 2023, Flowers had an article published in the Harvard Journal of Law & Public Policy titled “The Bar’s Role in Responding to Attacks on the Court.” In it, he wrote that “By recognizing unenumerated rights such as abortion, the Court allowed progressives to achieve their policy goals without having to do the hard work of convincing Congress or state legislatures to pass a law. Times have changed. Today, the Supreme Court is less interested in creating rights, and more interested in applying the limits on government power as they appear in the Constitution’s text.”
He accused activists of trying to “intimidate the Court” into not reversing Roe v. Wade leading up to the Dobbs decision. “The intimidation effort failed; the Court is not composed of cowards,” he said, indicating his belief that overturning the fundamental right to abortion was an act of bravery.
Flowers also wrote that news reports about recent Supreme Court ethics scandals were merely efforts to “discredit” the Court and that those stories were “all written to leave lay readers with the misimpression that the Supreme Court is corruptly doing the bidding of wealthy and influential benefactors.” He said that “The point of this smear campaign is obvious. By painting the Court as a corrupt institution, those who disagree with the Court’s approach to constitutional interpretation can prime the public to accept radical ‘reforms.’” He said these reforms were “dangerous” and would “imperil judicial review.”
“Lawyers understand these dangers,” he said. “At least, they should. And those who practice before the Court know the accusations of corruption are bogus.”
Um, okay!
The day after the 2024 election, CBS News posted on X that “There are active discussions occurring between Justice Department leaders and special counsel Jack Smith’s office about how to wind down the ongoing federal cases against President-elect Donald Trump, according to two people familiar with the talks.”
On his X account, Flowers quote-posted that message and said “Discussing what? They can dismiss the cases with a one-page filing that will take approximately a minute to prepare. The cases never should have been brought and there’s no excuse to have them pending now—they can achieve nothing besides interfering with the transition.”
Flowers’ substantive and extreme anti-civil rights record and his pro-Trump writings must be questioned during tomorrow’s Senate Judiciary Committee hearing.