McConnell Has a Request for Veteran Federal Judges: Please Quit – The New York Times

WASHINGTON — Running out of federal court vacancies to fill, Senate Republicans have been quietly making overtures to sitting Republican-nominated judges who are eligible to retire to urge them to step aside so they can be replaced while the party still holds the Senate and the White House.

Senator Mitch McConnell, Republican of Kentucky, who has used his position as majority leader to build a judicial confirmation juggernaut for President Trump over the past three years, has been personally reaching out to judges to sound them out on their plans and assure them that they would have a worthy successor if they gave up their seats soon, according to multiple people with knowledge of his actions.

It was not known how many judges were contacted or which of them Mr. McConnell had spoken to directly. One of his Republican colleagues said others had also initiated outreach in an effort to heighten awareness among judges nominated by Presidents Ronald Reagan, George Bush and George W. Bush that making the change now would be advantageous.

The overt effort by Republicans to create vacancies reflects a realization that Mr. Trump could lose the presidency, or that Republicans could lose the Senate majority and deprive Mr. Trump of his partner on judicial confirmations even if he did gain a second term.

Mike Davis, a former nomination counsel for Senate Republicans who created the Article III Project, a conservative judicial advocacy group, said that he still expected Mr. Trump to win, but that “we have to hope for the best and plan for the worst.”

Republicans are reminding the judges that it could be another eight years — 2029 — before they could leave under a Republican president.

Mr. Davis estimated that judges would need to decide by late summer or early fall to provide sufficient time for a nomination and confirmation.

According to a tally by the Article III Project, more than 90 judges nominated by the three previous Republican presidents are either now eligible or will become eligible this year to take what is known as senior status, a form of semiretirement that enables their slots to be filled even though they can still hear cases, hire clerks and receive full pay.

Twenty-eight of them are judges on the influential appeals courts, which have been a particular focus of the alliance between the Trump White House and Senate Republicans. One of them, Judge Thomas B. Griffith of the U.S. Court of Appeals for the District of Columbia Circuit, announced last week that he planned to retire in September, giving Mr. Trump the opportunity to make a third appointment to the powerful court in what will most likely be a contentious confirmation fight.

Mr. Trump has already placed more than 50 appeals court judges on the bench during the past three years — more than a quarter of the overall appellate bench. The aggressive Republican push has been so efficient that only one appellate seat is currently open. Conservatives are eager to see some of the longer-tenured judges make room for younger candidates who could continue deciding cases for decades.

David Popp, a spokesman for Mr. McConnell, said it should come as no surprise that he would be interested in the tenure plans of current judges.

“I’d point you back to his long-running mantra of ‘leave no vacancy behind,’” Mr. Popp said of Mr. McConnell, who has for months made it clear that he intended to fill as many judicial slots as possible before the end of this year.

Mr. McConnell has long been intently focused on the federal courts and considers his record on installing conservative judges the hallmark of his career, along with his decision to block the 2016 Supreme Court nomination of Judge Merrick B. Garland. The Courier-Journal, based in Louisville, Ky., reported that Mr. McConnell flew there Thursday with Justice Brett M. Kavanaugh for the investiture of a new U.S. District Court judge, Justin Walker, a 38-year-old former Kavanaugh clerk whom the Senate confirmed despite questions about his experience level.

Democrats have already made it clear that they intend to try to counter the successful Republican effort to place conservatives on the courts if they get the chance. Progressive advocates have also publicly encouraged sitting judges nominated by Presidents Bill Clinton and Barack Obama to delay their retirements until after the election to deny Republicans more vacancies, but they did not appear to be going so far as to call judges personally to encourage them to consider doing so.

Critics said the tactic by Mr. McConnell and other conservatives is inappropriate, and shows that his policy agenda is unpalatable to most Americans.

“Senator McConnell knows he can’t achieve any of his extreme goals legislatively, so he continues to attempt to pull America to the far right by packing the courts,” Senator Chuck Schumer, Democrat of New York and the minority leader, said in a statement. He predicted that his counterpart’s emphasis on the courts “will significantly hurt Republican senators in November.”

“If Mitch McConnell is having direct conversations to pressure sitting federal judges to basically retire so Trump can name more picks, it is court-packing in a different form,” said Brian Fallon, the executive director of the progressive judicial group Demand Justice. “It raises the question of what, if anything, McConnell is offering them to take senior status earlier than planned. This type of hand-in-glove coordination shows how utterly politicized the judicial branch is.”

Republicans have sent signals about judicial retirements in the past. In May 2018, with a midterm election looming that could have flipped the Senate, Senator Charles E. Grassley, Republican of Iowa and the chairman of the Judiciary Committee at the time, openly urged any Supreme Court justice pondering retirement to pull the trigger.

“If you are thinking about quitting this year, do it yesterday,” Mr. Grassley said during a radio interview. “If we have a Democrat Senate, you’re never going to get the kind of people that are strict constructionists.”

Justice Anthony M. Kennedy stepped down a little more than a month later and was replaced by Justice Kavanaugh, his former clerk.

While acknowledging the continuing lobbying effort, other Republicans were uncertain how effective it could be given the traditional independence of federal judges holding lifetime appointments.

“Federal judges have very strong independent streaks, and you can’t make them do it,” said Senator John Cornyn of Texas, a senior Republican member of the Judiciary Committee. “Unless they see some benefit to themselves, I don’t expect people to do it.”

Under senior status, federal judges have nearly all of the benefits and power of full-time judges, though qualifying appellate court judges generally cannot sit when their circuit court hears cases “en banc,” meaning all eligible judges participate. Senior judges can carry reduced caseloads. To qualify, judges must be at least 65 and have at least 15 years of service.

Republicans, capitalizing on rules changes instituted by both parties, have won confirmation of more than 190 judges since Mr. Trump took office, prioritizing the appeals courts since so many final decisions are made at that level.

To enhance that effort, Republicans abandoned a Senate tradition that had allowed home-state senators to block circuit court picks, depriving Democrats of the ability to stall some nominees.