Hi, and welcome back to Trump Watch! You hear about this polar vortex thing coming this weekend? Not like we can go outside much anyway. Tell me how you're spending the sunny/snowy quarantine days at [email protected] and follow me on Twitter at @jacq_thomsen.

The Judicial Controversy That Might Not Be

U.S. District Judge Justin Walker was already destined for a contentious nomination hearing when questions started being asked about the vacancy on the U.S. Court of Appeals for the D.C. Circuit he was set to fill.

Judge Thomas Griffith, a George W. Bush appointee who has sat on the circuit since 2005, quietly announced in March that he will retire in September. That gave President Donald Trump the chance to select his third nominee for the influential appeals court, even though it wouldn't do much to change the overall ideological makeup of the bench.

But reporting from The New York Times suggested Senate Majority Leader Mitch McConnell, who has an unmatched eagerness for confirming judicial nominees, had asked Griffith to retire to make way for a younger conservative judge. The Times report did not explicitly link McConnell to Griffith's vacancy, but the Kentucky Republican's work and the judge's retirement were both mentioned in the piece.

Progressive judicial group Demand Justice, which has pitched itself as a disruptive force when it comes to liberals' approach to the judiciary, soon after filed a complaint with the D.C. Circuit. They asked for an investigation into whether Griffith violated any ethics rules, citing the timing of his retirement.

And when Walker, handpicked by McConnell, was announced as Trump's selection for the seat—well, that just threw fuel on the fire. Democrats fiercely oppose his nomination, particularly over comments he made against the U.S. Supreme Court ruling in 2012 that upheld the Affordable Care Act. Add in his frequent defense of Brett Kavanaugh during the justice's confirmation process and a controversial opinion on religious liberty in the time of COVID-19, and you've got yourself a nominee with a lot of baggage but a clear path to confirmation.

So when Chief Judge Sri Srinivasan issued an order last Friday on the Demand Justice complaint, it was sure to make news. In the two-page order, Srinivasan said after receiving the complaint, the circuit needed Demand Justice "to verify statements made in the correspondence in writing under penalty of perjury." But the court never received that information.

That's where it got tricky. This is an allegation against a sitting judge who, after 15 years of service, would be close to other judges sitting on the bench. And the claim had already gotten significant publicity, meaning the circuit's handling of the complaint would as well.

Srinivasan cited commentary to the judicial conduct rules that state: "In high-visibility situations, it may be desirable for a chief judge to identify a complaint without first seeking an informal resolution (and then, if the circumstances warrant, dismiss or conclude the identified complaint without appointment of a special committee) in order to assure the public that the allegations have not been ignored."

And the judge noted that if the circuit took up the complaint, many judges may have to recuse because of their close relationships with Griffith. He said that a formal complaint had to be identified in order for the issue to be taken up by another circuit. So that's what Srinivasan did, asking Chief Justice Roberts to "transfer this matter to the judicial council of another circuit for review and disposition."

Then on Wednesday, after Srinivasan's order made headlines, Griffith broke his silence. Here's Griffith's statement in full, first obtained by NPR:

I decided to retire in June 2019 and announced it then privately to my family, my law clerks, and a few friends. My decision was driven entirely by personal concerns and involved no discussions with the White House or the Senate. Eleven years ago, my wife was diagnosed with a debilitating chronic illness. The recent years have been difficult, and it became clear that I would not be able to carry on my duties as a judge while still fulfilling my paramount responsibility to care for her. That is the sole reason for my retirement.

—Judge Thomas Griffith

The complaint very well may still be assigned to and investigated by another judicial circuit. But Griffith's statement took the wind out of the sails, and the topic wasn't raised once by Senate Democrats during Walker's nomination hearing Wednesday. That doesn't mean Walker won't be asked about it, as senators still have time to submit written questions to the nominee, as many said they would on Wednesday.

In statement Thursday, Demand Justice executive director Brian Fallon took a shot at McConnell for switching from bragging "about his ethically questionable campaign to get judges to retire, to refusing to answer any questions about it."

"McConnell's refusal to answer any questions makes it even clearer that we need a thorough inquiry into what conversations he was involved in, when. Any conversation McConnell had with Griffith before the judge announced his retirement that paved the way for the elevation of a key McConnell ally is ethically fraught and needs to be accounted for," Fallon said. "Chief Justice John Roberts should immediately refer this to another circuit for a thorough and prompt investigation."

Demand Justice had valid reasons for filing the complaint. It's what those groups are *supposed* to do—make longstanding institutions like the federal judiciary answer hard questions. Griffith also did not provide a reason for his retirement, which prompted speculation, even though judges don't always say why they're retiring (age is often a given, considering the lifetime appointments).

If Griffith had released a statement earlier, perhaps at the time his retirement was made public, the matter could have been cleared up. But complaints like these are the judiciary's sole avenue to ensuring the branch does stay independent and non-politicized, at least on paper, and if nothing improper happened surrounding the retirement, the reviewing judges will say so. (Not that we should always take those findings at their word—just take a look at how the Tenth Circuit's review of then-Judge Carlos Murguia's sexual harassment and misconduct played out, as they left out devastating details later revealed by a Judicial Conference report.)

Chief judges face tough decisions in how to handle the complaints that balance much-needed transparency for the most opaque branch of government. It's too bad that Srinivasan's order was distorted into sounding like he was calling for a full-blown investigation into Griffith, but what will matter most going forward is how the complaint is actually handled and what it ultimately turns up.

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Trump's SCOTUS Time to Shine

Trump's fights with the Democratic led U.S. House will finally get their day before the U.S. Supreme Court—over the phone, that is. The justices will hear arguments in the showdown on access to Trump's private tax records.

The justices have already asked for additional briefing on the cases, due by 2 p.m. today, on whether the political question doctrine applies to the lawsuits and the court can throw them out.

The court will also hear arguments on a separate subpoena from the Manhattan DA for the Trump tax documents. Tune in at 10 a.m. on Thursday for the livestreamed fun!

 

What We're Reading

>> Barr's Justice Dept. Moves to Drop Michael Flynn Prosecution as Trump Assails Case: "In a court filing, the Justice Department said it has taken the view that Flynn's statements in a January 2017 interview, in which he was accused of lying about his past communications with Russia's ambassador to the United States, did not merit a criminal prosecution….The Justice Department's move marked a stunning turnaround in a case originally brought by former Special Counsel Robert Mueller's team." [National Law Journal]

>> 'Constitutional Contempt Is Obvious': Justin Walker Grilled Over ACA During First Virus-Era Nomination Hearing: "Republicans and Democrats sharply split over the nomination of U.S. District Judge Justin Walker for the U.S. Court of Appeals for the D.C. Circuit, with both his statements on rulings on the Affordable Care Act and a recent opinion on religious liberty figuring predominantly during a hearing Wednesday….'The problem we have, judge, is that we expect of our judges honesty, humility, impartiality," said Democratic Sen. Dick Durbin. "You have not been the least bit impartial when it comes to the Affordable Care Act. Your legal or constitutional contempt is obvious.'" [National Law Journal]

>> Trump vows complete end of Obamacare law despite pandemic: President Trump said Wednesday he will continue trying to toss out all of the Affordable Care Act, even as some in his administration, including Attorney General William P. Barr, have privately argued parts of the law should be preserved amid a pandemic….On Monday, Barr attended a meeting of senior officials in which he argued the administration should temper its opposition to Obamacare, leaving some parts of the law intact, according to people familiar with the discussion, who spoke on the condition of anonymity because the conversation was private." [Washington Post]

>> Trump allies on the sidelines in Supreme Court financial records fight: Congressional Republicans who strenuously objected when a Democratic-led U.S. House of Representatives panel subpoenaed President Donald Trump's financial records last year have remained unusually quiet now that the fight has reached the Supreme Court….Unlike in other politically charged cases, his high-profile allies in Congress and in Republican-governed states like Texas have not filed amicus – so-called friend-of-the-court – briefs in support of Trump with the Supreme Court. His only major supporter is his own U.S. Justice Department." [Reuters]

>> Biden pledged to put a black woman on the Supreme Court. Here's what he might have to do.: "Only five black women are now on U.S. appeals courts, and all of them will be 68 or older this year, according to data compiled by NBC News from the Federal Judicial Center. Biden would face pressure to pick someone younger who could secure the seat for a generation or more. None of the last seven confirmed justices were older than 55 when nominated." [NBC News]

>> 'Bad Day for the Separation of Powers': Trump Appointee Says 9th Circuit Blocked an Immigration Policy That's Constitutional: "In his dissent, [Judge Daniel] Bress said the decision is 'yet the latest example of our court allowing a universal injunction of a clearly constitutional Executive Branch immigration policy.' 'There is no legal basis to impose novel and unjustified restrictions on what the Supreme Court has described as 'the President['s] sweeping authority to decide whether to suspend entry, whose entry to suspend, and for how long,' wrote Bress." [The Recorder]

>> Coronavirus Watchdog Nominee Is Silent on Trump's Ousting of Inspectors General: "Brian Miller, the Trump White House lawyer nominated to oversee the coronavirus financial relief effort, broadly refused Tuesday to address the president's recent moves to oust government watchdogs who criticized the administration, as Senate Democrats pressed him repeatedly with questions about his independence. Testifying through a blue mask, Miller cited 'ethical obligations' as barring him from discussing his work as a White House lawyer under the Trump administration, a role Senate Democrats argued should have disqualified him from being picked to serve as the special inspector general for pandemic recovery." [National Law Journal]

>> SDNY Judge Reinstates New York's Canceled Democratic Primary in June: "A Manhattan federal court late Tuesday reinstated New York's June 23 Democratic primary, ruling that the decision to scrap the already-delayed contest amid the COVID-19 pandemic had violated the rights of candidates and their pledged delegates….[Judge Analisa] Torres said that the move to nix the primary not only deprived [Andrew] Yang and his delegates of their opportunity to influence Democratic Party politics, but also stripped voters of the right to send like-minded representatives to the convention." [New York Law Journal]

Thanks for reading! Trump Watch will be back next week.