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As Trump runs out of appeals court vacancies to fill, Lindsey Graham calls for ‘originalist’ judges to take Senior Status

As Trump runs out of appeals court vacancies to fill, Lindsey Graham calls for ‘originalist’ judges to take Senior Status

The Circuit Courts arguably are the most important because the Supreme Court takes so few cases, and that is where Trump and Mitch McConnell have put their focus.

Last we reported, while you were focused on the pandemic, Mitch McConnell kept moving judicial nominees through the Senate confirmation process, with an eye on filling every vacancy by November. If Republicans lose the presidency or the Senate, the ability to transform the judiciary for a generation will be lost notwithstanding substantial success in the first term confirming judges.

Appeals courts arguably are the most important because the Supreme Court takes so few cases, and Trump is about to run out of appeals court vacancies. CBS News reports:

Since February 11, the Senate has confirmed nine federal judges, bringing the total number of judges on the federal bench appointed by President Trump to 196.

Last week, the Senate voted to confirm three nominees to district courts and teed up votes on two more for after Memorial Day. The Senate Judiciary, meanwhile, has proceeded with the nominations of Cory Wilson to the 5th U.S. Circuit Court of Appeals, and Justin Walker, tapped for the U.S. Court of Appeals for the D.C. Circuit.

Once they’re confirmed, all of the vacancies on the 12 U.S. circuit courts of appeals will be filled. Mike Davis, head of The Article III Project, a judicial advocacy group, said he cannot recall a past president filling all vacancies on the regional circuit courts.

According to Carrie Severino’s count, here are the current vacancies (pending the votes next week):

Current and known future vacancies: 86

Courts of Appeals: 2

District/Specialty Courts*: 84

Pending nominees for current and known future vacancies: 49

Courts of Appeals: 2

District/Specialty Courts*: 47

All Nominees (via Judiciary Committee) Confirmed by the Senate since Inauguration Day: 202

Supreme Court: 2

Courts of Appeals: 51

District/Specialty Courts*: 149

What to do with the lack of any more Court of Appeals vacancies?

Lindsey Graham wants older conservative appeals court judges to take Senior Status, which allows them to continue to serve on a diminished basis, but creates a vacancy to be filled.

National Review reports:

In an interview with Hugh Hewitt, Senate judiciary committee chairman Lindsey Graham encourages originalist judges eligible for senior status to take it now so their successors may be confirmed before the November elections:

Graham: This is an historic opportunity. 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. This is a good time to do it.

Hewitt: If they are an originalist eligible right now and they are listening to Lindsey Graham, chairman, can you assure them that their successor will indeed be confirmed before the election?

Graham: Well, if you wait, you know, November the 1st, no. So do it now.

Hewitt: Do it now. Loud and clear.


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Lindsey Grahamnesty finally has a good idea.

    Tiki in reply to tz. | May 29, 2020 at 3:09 pm

    The screenshot of Lindsey accompanying the article is the highlight and sum of his senatorial career; all show, no go.

      Tiki in reply to Tiki. | May 29, 2020 at 3:50 pm

      Things deserving of applause….

      Carpenter driving nails into pieces of wood…

      Accountant scribbling figures on ledger…….

      Fireman pouring bucket of water on a camp fire…..

      Lindsey Graham middle-manning executive office nominations….

      Using the garden hose on a Tom mating (vigorously) with your prize winning Siamese.

Maybe work on getting confirmation for agency nominees before that. Look at the Senate calender and if they can get it all done then Ok, but don’t ignore the agencies or bite off more than they can chew.

Well done.

The other question is, will Justice Thomas retire at the end of this SCOTUS session for the same reason?

    maxmillion in reply to SHV. | May 28, 2020 at 11:33 pm

    Considering how he was abused in his confirmation hearings by Biden et al, Thomas can stay on the court as long as he wants as far as I’m concerned. It’s his lifetime appointment to enjoy, and I’m confident he will do the right thing.

    kyrrat in reply to SHV. | May 29, 2020 at 1:02 am

    Thomas is younger than Bader Ginsberg, why should he retire before her?

      redc1c4 in reply to kyrrat. | May 29, 2020 at 2:44 am

      because he can, an so Trump can appoint is replacement, in stead of a crap shoot on the election.

      plus he can enjoy his retirement.

    Bisley in reply to SHV. | May 29, 2020 at 11:40 am

    With good health and good luck Thomas might be there for another twenty years (if he wants to). I would never push him to retire before he’s ready. Justice Thomas is the best legal mind, and possibly the only one of the present gang competent to sit on this court, though I must confess that I’ve yet to read any of Justice Alito’s opinions, and I really should (I think he’s good, but have no idea how good). Otherwise, they’re a bunch of duds, except maybe Gorsuch who could probably be brought up to the standard if he learns from Thomas.

      Andy in reply to Bisley. | May 29, 2020 at 5:06 pm

      He may not want to be there, but seriously, between retiring from the sup court and the end of your life, WHAT exactly are you going to do to fill your days that is more meaningful?

Just wondering out loud here, but since the Dems were all hot-to-trot about making 15-20 seats on the Supreme Court…

Is the size of each appeals court *fixed* in stone? I mean if there’s 14 judges in Court A, there’s no harm in getting a 15th one into the nomination process in case one of them suddenly retires or there’s an opening in Court B, right?

Just saying…

    Yes, the sizes of the circuit courts are established, but they could be changed. For example, there are a lot of arguments in favor of breaking up the 9th Circuit because it’s so big.

    But is it possible to nominate someone for a judgeship (or anything else) before the position actually opens up? Yes. It doesn’t happen very often, but it can be done.

TheOldZombie | May 29, 2020 at 1:43 am

Thank God there is at least one thing the Senate Republicans are doing that is good and that’s on judges.

Now if they could only go after Obamagate shenanigans as hard as they go after getting judges on the bench.

Barry Soetoro | May 29, 2020 at 2:03 am

As if we can trust Pseudoconservative Lindsey to do whatever conservative act he says he’ll do.

Two years ago McConnell was saying that given another two years the Republican senate would have transformed the federal courts for.a generation. Today’s story is that without keeping the senate in Republican hands the opportunity to do that is lost? What happened in the meantime?

If there is one area I disagree with you Professor, it is that McConnell and Graham are focused on the most important issue on their plates. This is exactly where Rush and Mark Levin are saying the opposite in making their case that there is no political will within the GOP to prosecute ANYONE on ANYTHING.

With all of the evidence being revealed by Grennell, it has become crystal clear that the Republicans (including McConnell and Graham) have known for at least 2 years that the Russia hoax Democrats were lying to Congress. How? The secret House investigative committee witnessed all of the lying. When under oath out of the eyes of the public, every single witness swore that their was no evidence to Russian collusion. Then, often on the same day, they would then appear before the Senate and say the exact opposite. McConnell, Graham and many others knew this as it happened. Yet all acted surprised when Grennell released the “top secret” material.

This more than anything convinces me that McConnell and Pelosi cut a deal over the various massive flu “relief” pork bills and both parties are in agreement. We get to feel like we are winning for a while and The Swamp wins again.

There is NO ONE helping Trump. And regardless of how much proof is produced by Barr and the rest, nothing will happen. THAT is what Rush and Levin are saying. At what price are we getting these judges? And why are we so sure that they are “conservative”? So far, it’s been a crap shoot.

    gibbie in reply to Pasadena Phil. | May 29, 2020 at 5:02 pm

    The only possible counter argument I can think of is that they have been waiting for the optimal time because the public has an exceedingly short attention span. We should know whether this is the case fairly soon.

I suspect that if LG had been more like the guy we’ve seen th a past 3 years he may very well have been the nominee in 2016 or 12.

leave no vacancy behind
– that includes as many future vacancies as you can
– if this requires 24 hour Senate sessions, go for it

Plenty of District Court judge positions still to fill.

And we should still be pushing for more immigration judges — we should be hammering Dems on keeping “kids in cages” while they wait up to a year to get in front of a judge to hear their asylum claims.

This is good and all, but I remind you that many of us have a spreadsheet open right now trying to figure out how our income fluctuations are going to impact the cost of our health insurance.