Trump on Thursday evening announced that he’s nominating Benjamin Flowers to an Ohio seat on the Sixth Circuit — which is set to become vacant on October 1 following Judge Jeffrey Sutton’s decision to take senior status. Flowers is the former solicitor general of Ohio who clerked for Supreme Court Justice Antonin Scalia and Ninth Circuit Judge Sandra Ikuta. He turned 39 last month.
In his Truth Social post announcing the nomination, Trump said that Flowers “successfully challenged dangerous and unlawful Policies of the Biden Administration,” noting that he is “confident that Ben will fight for the Great People of Ohio, and strongly uphold the Rule of Law in his new role.”
Flowers is Trump’s eighth nominee to the Sixth Circuit and the second since last year when he appointed Whitney Hermandorfer to a Tennessee seat on the court. On his X account, Flowers praised Hermandorfer’s nomination last year and said she’s a “fantastic lawyer” despite her short legal career and her fierce opposition to civil rights. Flowers also praised the nominations of Jennifer Mascott, Edmund LaCour, Eric Tung, and Chad Meredith — some of the most extreme judicial nominees during Trump’s second term.
Flowers regularly reposts messages on X that celebrate the demise of DEI, including from America First Legal — the organization co-founded by Stephen Miller. This includes one post from AFL last January celebrating Trump’s executive order that sought to redefine equal opportunity programs as discrimination. It also includes a post from Trump’s EEOC, which quotes Chair Andrea Lucas (appointed by Trump) saying that “Civil rights law is ‘colorblind.’”
In recent years, Flowers has filed lawsuits seeking to dismantle civil and human rights.
Flowers worked with Professor Richard Epstein on a brief filed before the U.S. Supreme Court in Trump v. Barbara — the birthright citizenship case (Epstein is the author of a forthcoming book titled “The Myth of Birthright Citizenship”). Alarmingly, their brief states that “Under the conventional view, therefore, children born within the United States to illegal immigrants are automatically made citizens of the United States, entitled to the full panoply of ‘privileges or immunities’ available to other citizens. The conventional view is wrong.”
Flowers, who is listed as the counsel of record, posted on X that it was an “honor” to work on the brief.
Last June, Flowers partnered with America First Legal in filing a lawsuit in the Eastern District of Michigan against the University of Michigan and its Michigan Law Review Association “to halt its rampant racial discrimination” — accusing the law review of adopting a “radical” DEI agenda in violation of federal civil rights law and the Equal Protection Clause. The group that Flowers filed the lawsuit on behalf of — Faculty, Alumni, and Students Opposed to Racial Preference — appears to have voluntarily dismissed the case without explanation in October.
In September, Flowers filed a brief before the Supreme Court of Ohio on behalf of the Independent Women’s Forum (IWF) and the Center for Christian Virtue defending the constitutionality of Ohio’s law banning gender-affirming medical care for transgender youth. Flowers’ brief stated that “Gender dysphoria is a mental illness” and referred to it as an “ideology-driven push to maim vulnerable children.” The brief, on which he is listed as the counsel of record, said that “The push to medically transition children is a profound scandal that has dramatically undercut the credibility of the medical profession.” Appallingly, his brief stated that “Future generations will, one hopes, view this disturbing chapter of medical history the way that ours views the eugenics movement.”
He also previously worked with IWF on a brief in opposition to the Biden administration’s Title IX regulations prohibiting discrimination based on sexual orientation and/or gender identity. And he is the counsel of record on an America First Legal brief arguing against the right of transgender students to use a communal restroom consistent with their gender identity at an Ohio school.
Flowers attacked trans children again when he filed a brief in September before the U.S. Supreme Court in Little v. Hecox and West Virginia v. B.P.J. — two cases this term that center around the freedom of transgender youth in America to participate in school sports. Flowers is again listed as the counsel of record on the brief, which was filed on behalf of the United States Conference of Catholic Bishops. In an X post, Flowers wrote that his brief “explains why neither the Equal Protection Clause nor Title IX entitles males to compete in girls’ and women’s sports. And it shows that a contrary ruling on the Title IX issue could have negative implications for Catholic schools and institutions.”
In October, Flowers filed a brief before the U.S. Supreme Court on behalf of Restoring Integrity & Trust in Elections urging the Court to do away with Gingles, the landmark case won by the NAACP Legal Defense Fund 40 years ago, which established factors that courts continue to use to determine whether a voting practice violates Section 2 of the Voting Rights Act.
“By abandoning Gingles—either by adopting an alternative test or ending race-based districting altogether—the Court can extricate federal courts from the sordid and politically fraught process of overseeing race-based voting districts,” Flowers’ brief states. “Beyond being unworkable, Gingles inflicts severe damage on public trust in the country’s democratic institutions and the federal courts.”
This is an alarming position from someone who has been nominated to serve on the federal bench.
He previously filed briefs on behalf of Restoring Integrity & Trust in Elections — which was founded by Karl Rove — in the Sixth and Ninth Circuits, as well.
Flowers’ extreme and disturbing record and his loyalty to Trump are not surprising. It is nevertheless terrifying that he may soon have a lifetime seat on a powerful federal appellate court.