The chief judge of a key federal appeals court has asked for an investigation into whether Senate Majority Leader Mitch McConnell schemed to create a vacancy at the court for a protege, ahead of a Senate Judiciary Committee hearing Wednesday on the friend’s nomination.
The accusation is the latest roadblock thrown up against Judge Justin R. Walker, 37, who has rocketed in less than a year from law school professor to federal district judge in Kentucky to nominee for the D.C. Circuit Court of Appeals that is often a stepping stone to the Supreme Court.
The appeals court’s chief judge, Sri Srinivasan, asked the Supreme Court to order an inquiry into the alleged scheme by Mr. McConnell, Kentucky Republican.
The accusation originated with the liberal advocacy group Demand Justice. In March, the group asked Judge Srinivasan to investigate the vacancy of retiring Judge Thomas Griffith, whose departure meant President Trump could put a judge on the influential D.C. bench.
Judge Srinivasan, who was appointed by President Obama, noted in his request to the Supreme Court that Demand Justice’s accusations were unverified.
The Supreme Court confirmed Tuesday that Chief Justice John G. Roberts Jr. received the letter from Judge Srinivasan but had not taken any action.
Demand Justice has waged an all-out assault on Judge Walker’s nomination and repeatedly sought to delay the filling of the vacancy. The group’s #StopWalker campaign has labeled Judge Walker “a McConnell crony who’s partisan, unqualified and unfit to be a judge.”
It is unclear whether it would have been improper if Mr. McConnell had urged Judge Griffith to retire.
Allegations of playing politics with judicial vacancies are practically standard operating procedure in Washington.
Conservatives have lodged similar accusations that Democrats have urged Supreme Court Justice Ruth Bader Ginsburg, 87, not to retire until a Democrat occupies the White House.
In the early 2000s, a Senate memo emerged that detailed a strategy by Sen. Edward M. Kennedy, Massachusetts Democrat, for stalling one of President Bush’s nominees to the 6th Circuit U.S. Court of Appeals until after the panel had ruled on a landmark affirmative action case.
At the time, the views on Kennedy’s scheming split neatly along partisan lines.
The question now also cuts both ways. Did Mr. McConnell orchestrate a vacancy for political or personal purposes? Did Judge Srinivasan advance a liberal group’s agenda against Judge Walker?
Judge Srinivasan’s chambers did not answer questions about the timing of his referral to the Supreme Court.
In an order detailing his decision to refer the matter to the Supreme Court, Judge Srinivasan listed two factors motivating him: the lack of evidence to back up claims about undue influence on Judge Griffith and the coronavirus outbreak making it difficult for Demand Justice to support its accusations.
“When, as here, there is no verified, formal complaint, the rules require identification of a complaint to enable a request for transfer of the matter to the judicial council of another circuit for review and disposition,” he wrote. “It being apparent that the circumstances warrant a request for transfer, the court has requested, pursuant to Rule 26, that the Chief Justice of the United States transfer this matter to the judicial council of another circuit for review and disposition.”
Judge Srinivasan made clear that the information arriving from Demand Justice was “unverified” and the advocacy group failed to provide any verification of its accusation.
Demand Justice’s March letter attributed its accusations of undue influence over retiring Judge Griffith by Mr. McConnell to no one.
“Nothing is known about whether or how Majority Leader McConnell might be attempting to further incentivize these judges,” wrote Katie O’Connor, Demand Justice senior counsel. “A prompt inquiry into the majority leader’s potential efforts to influence Judge Griffith, perhaps through improper means, is essential, particularly because it appears that he has attempted to influence many other federal judges, as well.”
Mr. McConnell’s office appeared unconcerned by Demand Justice’s effort to delay Judge Walker’s hearing on Wednesday.
“Leader McConnell looks forward to watching Judge Walker’s confirmation hearing this week,” said David Popp, Mr. McConnell’s spokesman.
Judge Srinivasan’s public order does not make explicit mention of Judge Walker, Judge Griffith or Demand Justice and instead refers to them as a “future colleague,” “a judge,” and “an organization,” which makes the public order difficult for onlookers to understand. The private letter Judge Srinivasan sent to Chief Justice Roberts has not been made public.
Judge Griffith did not respond to request for comment made to his chambers. He told NPR on Tuesday his decision to retire involved no discussion with the White House or Senate and was attributable to his spouse’s chronic illness.
• Ryan Lovelace can be reached at rlovelace@washingtontimes.com.
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