Sen. Lindsey Graham (R-South Carolina), the chairman of the Senate Judiciary Committee, is openly encouraging federal judges who are close to the age of retirement to consider leaving the bench in order to give President Donald Trump more judicial vacancies to fill before the presidential election later this year.
During an interview with conservative radio host Hugh Hewitt this week, Graham urged judges in their 60s or older to consider taking senior status so that the president could replace them with younger judges. The move would virtually ensure right-wing dominance over the judicial system, and undermine the ability of a Democratic president to ideologically shift the courts.
Graham wasn’t coy with what he hoped would happen.
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“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,” he said in the interview.
Graham also encouraged judges to make such retirement decisions as soon as possible, as Trump and his Republican allies in the Senate would “need some time” to nominate and confirm new judges to replace them.
The push by conservative lawmakers for judges to retire has been in the works for at least a few months now. The New York Times reported in March that Senate Majority Leader Mitch McConnell was meeting personally with some older judges to encourage them to take senior status.
Republican senators have contradicted their own views on judicial nominations, particularly during a presidential election year. In 2016, Republicans famously obstructed the nomination process for then-President Barack Obama when a seat on the Supreme Court opened in February of that year after Justice Antonin Scalia died unexpectedly. Obama nominated Judge Merrick Garland to take Scalia’s place, but Republicans blocked him from even being considered, arguing that such nominations should not happen during an election year.
“Let’s let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be,” McConnell said in 2016.
Earlier this month, however, when Justice Ruth Bader Ginsburg went to the hospital to deal with a gallbladder infection, Republicans appeared to be champing at the bit over whether Trump might have a chance to make another appointment to the Supreme Court. When asked whether he would confirm a new Supreme Court Justice, McConnell appeared to disregard his previous standard.
“If you’re asking me a hypothetical about whether this Republican Senate would confirm a member of the Supreme Court due to a vacancy created this year — yeah, we would fill it,” McConnell told Fox News.
Graham, too, has flip-flopped on the issue, on an even shorter timeline. In 2018, during the nomination hearings of Justice Brett Kavanaugh, Graham answered questions about the possibility of a justice being nominated in two years’ time.
“If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait until the next election,” Graham said.
But this month, Graham changed his tune completely, suggesting it was “a different situation” than it is now.
“You had the president of one party nominating, and you had the Senate in the hands of the other party,” Graham said of the circumstances in 2016. “A situation where you’ve got them both would be different.”
The hypocrisy isn’t just evident in hypothetical Supreme Court nominations. Republicans also stalled many of Obama’s district judge nominations in his last year as president. The push to nominate and confirm as many new judges as possible this year is a stark departure from their obstructionism four years ago.