Sen. Lindsey Graham (R-SC) threw subtlety to the winds during a Thursday interview with radio host Hugh Hewitt, encouraging older federal conservative judges to take “senior status” and make room for a fresh batch.
“This is an historic opportunity,” Graham said. “We’ve put over 200 federal judges on the bench. I think one in five federal judges are Trump appointees. If you can get four more years, I mean, it would change the judiciary for several generations.”
“So if you’re a circuit judge in your mid-60s, late 60s, you can take senior status, now would be a good time to do that, if you want to make sure the judiciary is right of center,” he added.
“Senior status” is a state of semi-retirement for a federal judge, when they can choose to take on a reduced caseload if they wish. Their seats on the bench are considered vacant, and the President can appoint replacements.
There has been an all-out push from Republican lawmakers and their adjacent powerbrokers to pack the federal courts with conservative justices while the White House and Senate are politically aligned.
Senate Majority Leader Mitch McConnell (R-KY) has been frank about his efforts, asserting that his remaking of the federal judiciary — and his refusal to let President Barack Obama seat Merrick Garland on the Supreme Court — is the most important part of his legacy. His efforts have made his initial defenses on the Garland case, that he was letting the “American people decide,” clearly bogus. If a Supreme Court seat opened in an election year, McConnell said last May, “we’d fill it.”
In his Thursday interview, Graham even acknowledged that “we changed the rules for the Supreme Court.”
GOP lawmakers have been buoyed in their efforts by right-of-center legal groups including the Federalist Society, which channels its money and connections into extensive lobbying and media efforts to fast track hand-selected candidates onto the federal bench.
While the efforts to conservative-ize the courts are not new, the GOP willingness to so openly describe the campaign is more recent.
That candor, warned Professor Barry Friedman at NYU Law School, could catalyze a backlash sooner rather than later.
“They are loudly and aggressively packing the courts,” he told TPM. “There is a high probability this is going to end in a crisis for the judiciary down the road.”
“To the extent the judges’ opinions are consistent with majority views in the country, the Republicans will have succeeded, but I will not be surprised one iota if the result ultimately is a backlash,” he added.
Still, it’s not clear that federal judges would even heed Graham’s urging. As Professor Steve Burbank of University of Pennsylvania law school pointed out, those who are eligible to take senior status were not appointed by President Trump and may have concerns about some of his hyper-partisan appointees.
And, based on a study Burbank conducted in 2012, federal judges are more likely to be motivated by things like the tax benefits and ability to be selective about their caseload that come with senior status above political maneuvering.
“Moreover, in light of Senator Graham’s well-publicized encouragement, they may not want the timing of their decision to contribute to the impression that the federal judiciary is not just part of our political system but also part of ordinary politics,” he said. “Finally, they may not want advice from Lindsey Graham about anything.”
Graham, however, is unbowed. Hewitt asked if he could assure eligible judges that their successors would be confirmed before Election Day — before, in McConnell’s words, the American people have a chance to decide.
Graham, in response, urged expediency. “If you wait … no,” he said of the older judges. “Do it now.”