Fearing an electoral bloodbath in November, President Donald Trump and his Republican allies are working frantically to secure as many lifetime appointments for conservative jurists as they can while the GOP still holds the reins of power in the Senate and White House.
As the clock ticks, the effort has intensified beyond filling vacancies to creating them: Conservative activists and GOP political insiders are mounting a sotto voce campaign urging older conservative judges to retire now before it becomes too late for Trump and Senate Majority Leader Mitch McConnell to swap them out for younger models.
And they have a target list.
Insider has obtained a list of more than 80 judges that Republican activists have identified as candidates for the pressure campaign. The list, the existence of which was reported by The New York Times in March, is circulating through Washington’s power corridors and informing GOP strategy for the federal judiciary. It names Republican-appointed judges who’ve reached the sweet spot in their careers where they are now eligible for retirement or senior status — a sort of judicial semiretirement — and the lifetime pension that comes with it. The full list is published below.
By meeting the criteria, they’ve become the perfect candidates for Republican Party elders to plead with them to step back from their full workloads so that Trump can tap a like-minded replacement.
“You can’t take anything for granted,” Mike Davis, a former top Senate GOP aide who worked on judicial nominations, said about the prospects Trump will win reelection. “These Republican-appointed judges may be stuck in their jobs for the next eight years if they don’t announce they are going to retire or semi-retire in the next several weeks.”
Davis now runs a conservative advocacy group called the Article III Project, which created the list.
On the list: former Supreme Court short listers, barrier breakers
The judges on the target list may not be household names. But many are heavyweights in their profession.
The list includes Supreme Court shortlisters from GOP administrations of yesteryear, like James Harvie Wilkinson, a Ronald Reagan-era appointee from the Richmond-based 4th Circuit U.S. Court of Appeals; Frank Easterbrook, another Reagan pick on the Chicago-based 7th Circuit U.S. Court of Appeals; and Ricardo Hinojosa, a federal judge based in McAllen, Texas, who has been on the bench since 1983.
Several barrier-breaking judges are also now eligible to leave their full-time jobs, including Juan Torruella, an 86-year old Reagan pick who remains the only Hispanic to serve on the 1st Circuit Court of Appeals in Boston, and 81-year old Ilana Rovner, whom George H.W. Bush tapped to be the first woman to join the 7th Circuit.
In all, the list of eligible judges that Trump allies hope will step down soon includes 18 people who secured their lifetime appointments more than three decades ago under Reagan, plus another dozen who were tapped during the George H.W. Bush administration.
The bulk of the potential new Trump appointments would fill seats held currently by judges named by President George W. Bush. Nearly 50 judges from the last GOP administration are already eligible for retirement or senior status, and there are also another seven who are on track to meet that criteria before the end of the year.
A Trump victory in November keeps the list relevant too. These judges would be among the closest watched members of the federal bench for new vacancies in a second Republican term.
Senate Majority Leader Mitch McConnell and his protégé Justin Walker during his May 2020 confirmation hearing for a seat on the US Court of Appeals for the DC Circuit.
Caroline Brehman/CQ Roll Call
McConnell’s motto: ‘Leave no vacancy behind’
Trump has already placed more than 190 judges on the bench since taking the White House, many of them dramatically younger than their predecessors and primed to influence the country’s legal landscape for decades to come.
He would never have achieved that pace if Senate Democrats hadn’t overhauled the chamber’s rules back in 2013, eliminating the filibuster for federal judges other than the ones who are tapped for the Supreme Court and instead allowing a simple majority for confirmations.
Then-Majority Leader Harry Reid invoked the so-called “nuclear option” because Republican opposition hampered President Barack Obama’s ability to get his judicial nominees seated on the federal courts.
But McConnell, who took the reins of the Senate after the GOP flipped control in the 2014 midterms, has taken advantage of the rule change, acting on Trump’s nominations with ruthless efficiency. The Kentucky Republican has placed filling vacancies at the top of the Senate agenda.
Even the ongoing coronavirus pandemic, which otherwise has upended schedules across large swaths of the federal government, hasn’t made McConnell blink.
“My motto for the year is leave no vacancy behind. That hasn’t changed. The pandemic will not prevent us from achieving that goal,” McConnell told conservative radio host Hugh Hewitt last month.
“That is music to my ears,” Hewitt replied.
A stymied demand for investigation
McConnell’s singular focus means the Senate will be pressing ahead to fill vacancies already on the books. On Thursday, the Judiciary Committee will hold confirmation votes for six more new federal district court judges tapped to fill slots in Louisiana, Pennsylvania, Texas, New York, Nevada, and Virginia. Another 29 Trump district court judicial nominees are also moving through the confirmation process, while 38 vacancies are still waiting for Trump to nominate a replacement, according to data compiled by the Article III Project.
At the federal appellate court level, Trump currently has just two openings. One is slated to be filled by Cory Wilson, a Mississippi state appeals court judge tapped for a vacancy on the 5th Circuit. The other is for Justin Walker, a 37-year old McConnell protege currently sitting on the federal bench in Kentucky. Walker is poised for a promotion to the U.S. Court of Appeals for the DC Circuit, which because of its jurisdiction over much of the federal government is widely seen as the second only to the Supreme Court in terms of influence.
Walker’s potential elevation to a seat currently held by George W. Bush appointee Thomas Griffith — a Senate floor vote is expected early next month — sparked calls for an investigation into whether McConnell improperly pressured Griffith to make way for new blood. The liberal group Demand Justice asked the chief judge of the DC Circuit, Sri Srinivasan, for an inquiry in March. Srinivasan asked Chief Justice John Roberts to approve such an investigation, but Roberts rejected the request last week.
Griffith told NPR in a statement he was stepping down to care for his wife, who has been diagnosed with a debilitating chronic illness.
Frank Easterbrook from the 7th Circuit US Court of Appeals in Chicago appears on a list of GOP-appointed judges targeted for retirement.
Lee Balterman/The LIFE Images Collection via Getty Images/Getty Images
Anyone up for an ambassadorship?
Nudging judges with lifetime appointments toward retirement is considered a no-no in many legal circles. But it does happen.
Such requests can sometimes be anything but subtle.
“If you are thinking about quitting, do it yesterday,” Sen. Chuck Grassley, the Iowa Republican and former chair of the Judiciary Committee, said to any conservative judges who may have been listening during a May 2018 radio interview. “If we have a Democrat Senate you’re never going to get the kind of people that are strict constructionists.”
Back in 2014, Supreme Court Associate Justice Ruth Bader Ginsburg faced a steadystreamof calls from liberal commentators calling for her to retire before Obama’s term ended so the Democratic president could pick her replacement. She would have none of it.
Fast forward to the Trump era. According to a report in March in The New York Times, McConnell has been calling GOP-appointed judges personally to gauge their interest in leaving their jobs while he still controls the chamber and has the ability to push through confirmations.
Democrats say what McConnell has been doing is far from kosher.
“An op-ed is very different from the Senate majority leader calling and telling you to retire,” said Christopher Kang, the co-founder of Demand Justice and a former Obama White House attorney who led the team that secured confirmation for more than 220 judicial appointees.
Kang rejected the notion that it’s OK to reach out to judges and engage in a conversation about their job plans. “I never did because I thought it’d be inappropriate,” he told Insider.
Even some in Trump’s camp view the solicitations as unseemly. “It’s pretty dicey to try to reach out to a federal judge and ask them if they’re going to retire,” said a person involved in securing Trump’s judicial appointments. “In my experience they don’t take too kindly to that. You really don’t do it. You kind of hope they will see the use of making their seat available for reappointment.”
This person cast doubt on the idea many more judges would step back from their current position. “It’s late,” the person said.
Davis, the Article III Project founder and former Grassley aide, rejected the idea that McConnell or others were crossing a line by trying to sound out federal judges. “That’s complete garbage,” he said. “There’s nothing unethical about it. The Democrats are just mad that Mitch McConnell is a lot more effective than they are.”
Davis said he didn’t know how many calls McConnell has made to date to judges who’ve crossed the threshold of eligibility to to step down but he hoped that all 80 on his list had gotten calls.
“I’d love to see them leave,” Davis said. “If they want to be an ambassador to some tropical country I think we can probably make that happen.”
He later clarified he was joking.
Trump appointees have helped the GOP secure new appeals court majorities
Even if Trump secures no further judicial confirmations, he’s already succeeded in tilting the federal judiciary toward a more conservative ideology.
It starts of course with the Supreme Court, where the president’s selection of Neil Gorsuch — to a seat that McConnell prevented Obama from filling — and Brett Kavanaugh as associate justices helped cement a conservative majority.
But there are also 51 Trump-appointed appellate court judges who hear arguments on cases that frequently establish precedent, considering just how rare it is for the Supreme Court to intervene.
Trump’s new arrivals include 19 people who replaced judges appointed by Democrats. That means there are now more jurists appointed by Republicans on the 2nd, 3rd and 11th circuits, which combine to handle cases covering more than a quarter of the country’s population in Alabama, Connecticut, Delaware, Florida, Georgia, New Jersey, New York, Pennsylvania and Vermont.
Thanks to Trump, Republican-appointed judges now have also cemented their majorities on the New Orleans-based 5th Circuit, the Cincinnati-based 6th Circuit, the 7th Circuit in Chicago and the St. Louis-based 8th Circuit.
Republicans have also nibbled away at the Democrat-appointed majorities on the historically progressive 9th Circuit, which covers nine Western states and went from a composition before Trump took office of 18 Democrat-appointed judges and seven Republicans to a more even 16-13 split. He has likewise chipped away at a majority of Democrat-appointed judges on the 4th Circuit, which covers the mid-Atlantic states.
US District Court Judge Lee Rosenthal tells Insider she has no plans to retire.
‘I hope to die on the bench’
Insider contacted the chambers for more than 20 of the judges on the list created by the Article III Project. Several declined to comment.
But not everyone.
A top aide to Charles Norgle, an 83-year old Reagan appointee serving as a federal judge in Northern Illinois, said the judge had not spoken to him about taking senior status. “He’s been eligible for years,” the staffer said.
“No one, including Sen. McConnell or any other senator or anyone calling on his behalf, or anyone, has contacted him regarding retirement or senior status,” said a staffer to Steven Douglas Merryday, a George H.W. Bush-appointee from the Middle District of Florida.
U.S. District Court Judge Lee Rosenthal, the 67-year old chief federal judge for the Southern District of Texas, said in an email she had “no present intention of taking senior or retiring” status.
“I cannot speak for other judges or comment on the propriety of the calls from the Senate GOP leadership,” Rosenthal wrote. “I can say that it is my impression that for district judges, the personal largely trumps any political factors in the decision to take senior status or leave the bench.”
“I still have some years to serve as chief judge, a role that has never been more challenging or more interesting,” she added. The appointee of President George H.W. Bush also noted that judges in her district who have taken senior status have maintained large caseloads that have helped the court stay on top of a greatly increasing caseload of civil and criminal cases.
Another federal judge on the list requested anonymity to say there’d been no outreach from McConnell or anyone else about their job plans.
“I hope to die on the bench,” the judge said.
Connor Perrett contributed to this report.
Table 1: Here’s the list of federal judges eligible for retirement being targeted by GOP insiders.
Table 2: Here’s the list of federal judges nearing retirement eligibility targeted by GOP insiders.