Republicans have a new strategy for putting more conservative judges on the federal courts this year. And once again, it is likely to thwart efforts by Democrats to slow the buildup of conservatives in the federal judiciary.
Eligible appeals court judges (appointees of Republican presidents, to be specific) are being asked to switch to senior status, a form of semi-retirement that allows them to continue hearing cases but opens their seat for a new nominee. This could create as many as 28 vacancies on the appeals courts.
The impetus to accelerate the nomination of Republican judges comes from the November election. Republicans are acting now in case they face a serious setback. Should the GOP lose the White House or the Senate, it would no longer be in full control of the judicial selection process, as it has been since Donald Trump won the presidency in 2016.
If Trump loses, that would be the worst outcome. A Democratic president would pick federal judges — and they wouldn’t be conservatives. If Republicans lose the Senate, they might not be as unscrupulous and angry as the Democrats are today. But they’d be in the minority, which is bad enough.
Democrats are inconsolable over the Republicans’ success in confirming two Supreme Court justices and 51 appeals judges, most in their 40s or 50s. Another batch of relatively young, conservative judges in the federal judiciary would drive Democrats into more bouts of despair.
But Democrats have only their former Senate majority leader, Harry Reid, to blame. He abolished the filibuster for appeals court nominees in 2013. Even with a thin Republican majority, Senate Majority Leader Mitch McConnell has kept his caucus united in approving judges. Were the filibuster alive, conservatives would have to lie about their views to be confirmed.
The use of senior status to create vacancies is only the latest humiliation of Democrats in the war over judges. Once Trump arrived, the trio of McConnell, White House legal counsel Don McGhan, and Leonard Leo of the Federalist Society became the masterminds of an ambitious judicial effort. When McGhan stepped down, he was replaced by presidential counsel Pat Cipollone.
As chairman of the Senate Judiciary Committee, Chuck Grassley kept Democrats from misusing a political relic, the so-called “blue slip,” to block confirmation of conservatives. Lindsey Graham took over as chairman in 2019, but Grassley will return as chairman or ranking Republican in 2021. McConnell cut the 30 hours for deliberation over nominees, which Democrats utilized as a delaying tactic, to two.
Democrats whined about these changes. But Grassley was wily. He didn’t kill the blue slip. He just never allowed them to be honored. McConnell didn’t bother with cleverness. Real deliberations weren’t happening anyway. Why waste 30 hours?
Together, McConnell, Grassley, and Graham decided on the senior status strategy. It’s both legal and aboveboard. They have talked to many of the 25 appeals judges currently eligible “to nudge them all,” a Senate source says. Three more will become eligible in June.
My guess is many will agree to become senior judges. It’s a pretty good deal. To qualify, a judge must be 65 or older and have 15 years of judicial service (10 years at age 70). There’s an incentive to go senior now. If they decline this year, they might have to wait through a Democratic presidency. They’d be pressured to sit still until a Republican is president again and would nominate a conservative successor. The wait could be four, eight, who knows how many years?
Senior judges, by the way, get four law clerks and can accept a full caseload, or not, that includes cases in other judicial districts. And the prestige of being on a court one rung below the Supreme Court remains. Not bad.
The underlying assumption of the senior strategy is that there’s time to confirm new appellate judges this summer and into the fall. The current Senate doesn’t fold up until the end of the year. There are plenty of wise, young conservatives on state, local, and federal courts to choose from. Many judges on America’s No. 2 courts have come directly from government or private practice.
Ask yourself this question: What is the last job Supreme Court justices hold before being elevated? These days, they come from the appeals courts. There’s Brett Kavanaugh, Neil Gorsuch, Samuel Alito, Elena Kagan, Sonia Sotomayor, Stephen Breyer, Ruth Bader Ginsburg, Clarence Thomas, and John Roberts. That’s all nine justices, each one groomed, scrutinized, their opinions circulated in a court of appeals.
Fred Barnes is a Washington Examiner senior columnist.
