Thursday

July 18th, 2019

Insight

A plea to 'senior' judges for the future of our courts

Hugh Hewitt

By Hugh Hewitt The Washington Post

Published April 1, 2019

A plea to 'senior' judges for the future of our courts
Although the flow of judicial nominations from the White House has inexplicably slowed in recent months, there are signs that the Senate Judiciary Committee under new chairman Lindsey Graham, R-S.C., and the Senate Republican caucus under Majority Leader Mitch McConnell of Kentucky is prepared to invoke procedures first deployed by former Democratic Senate caucus leader Harry Reid of Nevada to limit the time which Democrats may delay nominees to the federal court of appeals and trial benches.

Reid ended the filibuster for these positions so simple majority confirmation is all that is needed, and Republicans have the majority. They might not come 2021.

On my radio show Wednesday, Sen. James Lankford, R-Okla., guaranteed that the rules change limiting time for the debates on these nominees in the Senate will happen soon. When that happens, the five remaining nominees to appeals courts still pending in the Senate will quickly join the 37 already confirmed under President Donald Trump, and the more than 50 nominees to the federal district trial court in the Senate queue will begin to move briskly to join their 53 colleagues Trump has already sent to the federal district courts.

That is great news for rule-of-law conservatives who believe Article III judges must reel in the administrative state, must uphold property rights, must guarantee the full civil rights of every American - all of those rights for all Americans.

But, what of the judges on the federal bench who could take "senior status" but who have not yet chosen to do so? There are at least two such candidates for this wonderful category in each appeals court circuit. Senior status judges don't "retire" - at least most of them don't. They continue to hear and decide crucial cases though they do lose the opportunity to participate in the en banc panels of their circuit. But they also "open" their seat for a new nominee.


I believe these judges who are so eligible should announce their intention to take senior status - and soon. The rules have finally changed, and judges eligible for this choice thus have it in their power to guarantee that their successors will be superbly qualified. Their oaths to protect and defend the Constitution will be honored by opening the door for the next generation of judges committed to the rule of law and, yes, an "originalist" approach to judging.

Trump's first term is rapidly running out. To conduct the search and background checks necessary to find five-star replacements for those judges who raise their hand for senior status would require a declaration of intent from them by early summer at the latest.

If any of these judges had doubts about the quality of Trump's nominees, they know now that his choices are superb, their collective output vast and certain to grow. To get the courts back to doing what the courts should be doing, we need more such nominees, and in a timely fashion. If you know one of these judges, perhaps leave a copy of this column on his or her desk. A small nudge, perhaps, and a reminder that their distinguished careers will be more distinguished still if their place on the court is taken by a young superstar judge.

And, of course, tell the good ones to keep working hard in their "senior status."

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