The stealthy Republican takeover of the American justice system began long before Donald Trump took office.
Ever since the GOP took control of the Senate and elected Mitch McConnell as Majority Leader, the Kentucky senator has made it a barely publicized priority to put ambitious young right-wing judges into lifetime positions with an eye on rolling back the policies such as voting and abortion rights that older, more experienced, and more liberal judges had enforced through their legal rulings.
McConnell’s completely fabricated policy of not allowing President Barack Obama to even get a Senate confirmation hearing for his pick for the vacant Supreme Court seat in his last year in office was the most egregious manifestation of this nefarious right-wing plot to stack the courts with their allies and foster their conservative agenda.
With the Majority Leader now recalling the Senate back into session in the middle of a pandemic — not to enact much needed additional relief for those rendered jobless and soon homeless by the economic effects of the COVID-19 outbreak, but to confirm additional judicial nominees, many of which have been rated as unqualified by the American Bar Association — the news that broke today was very welcome by progressives across the country.
Judge Sri Srinivasan, the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, formally requested that Chief Justice John Roberts assign another circuit to look into a complaint of ethical improprieties by McConnell and the judge whose resignation created a controversial opening on the DC circuit, Judge Thomas B. Griffith.
The complaint was filed by the progressive advocacy group Demand Justice which is questioning the timing and circumstances of Griffith’s retirement announcement in March after reports that the Senate Majority Leader “had been contacting appeals court judges nominated by Republican presidents to encourage them to retire,” according to an accountin The New York Times.
With the 2020 elections looming and both the balance of power in the Senate and the White House up for grabs, McConnell’s move was seen as a last-ditch effort to pack the courts as much as possible while he still controlled the levers of power to use his majority to confirm his army of Federalist Society-approved nominees.
That the replacement nominated to fill Judge Griffiths seat was Justin Walker, “a 37-year-old protégé of Mr. McConnell’s whom the senator had ardently promoted for the seat,” as The Times recounts, was not seen as coincidental by many.
According to The New York Times:
“It is not known whether Mr. McConnell had been in touch with Judge Griffith, a former Senate legal counsel who was nominated to the appeals court in 2004 by President George W. Bush, and on Monday a top aide to the majority leader refused to say.”
Judge Srinivasan, nominated to the appeals court by President Barack Obama, decided to request “review and disposition” of the Demand Justice complaint by a judicial council in another circuit to prevent any question of bias about the outcome.
“The organization’s request for an inquiry concerns the decision of a judge of this court to retire from service and the resulting creation of a vacancy on this court, which would be filled by a future colleague on this court,” the judge wrote, saying that the circumstances made a review from outside the D.C. circuit court to be an obvious decision.
The original complaint from Demand Justice outlines their concerns.
“The coordinated manner of Majority Leader McConnell’s involvement in the judges’ decision-making is quite unprecedented and raises significant ethical questions for the judges who heed his advice,” the group said when requesting an investigation. It said a “thorough inquiry into the judge’s announcement and scheduled retirement, including when and how the decision to retire was made, and with whose input, is crucial.”
Senator Sheldon Whitehouse (D-RI), a member of the Senate Judiciary Committee who will be voting on Walker’s confirmation later this week, said:
“The judiciary is right to take seriously allegations that sitting judges are gaming their retirements at the request of politicians.
“Mitch McConnell has been clear that his top priority is packing the courts with the judges his right-wing donors want, and that he’s actively pushing judges to retire. A judge would undermine the credibility of the bench by participating in that partisan gamesmanship.”
Today, Brian Fallon, the executive director of Demand Justice, called for a delay of the hearing “until we know the truth about what ethical lines Mitch McConnell crossed to get Walker this seat.”
“At the very least,” Fallon said in a statement, “McConnell should come clean about whether and when he contacted Judge Thomas Griffith prior to his sudden retirement.”
According to The New York Times:
Mr. McConnell has known Judge Walker since the nominee was in high school and has been a zealous advocate for him, including taking him to the Oval Office to meet Mr. Trump. Judge Walker, who has served only six months as a U.S. District Court judge in Kentucky, was previously rated unqualified by the American Bar Association because of his limited experience, but he has strong Republican support.
Your move, Chief Justice Roberts.
We will see whether the politicization of the American judicial system is complete by your reaction to Judge Srinivasan’s request and whether an obviously unqualified nominee can pass muster despite the potential ethical lapses involved.
And about that doctrine that says presidents aren’t allowed to nominate judges during their last year in office? Does that only apply to Democrats? Because if Trump gets another term in the White House, we may as well abandon all hope now.
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