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Watchdog Group Demands Probe of D.C. Circuit Judge’s Retirement

March 19, 2020, 6:25 PM

Demand Justice, a progressive judicial watchdog group, is asking the U.S. Court of Appeals for the D.C. Circuit to investigate whether Judge Thomas Griffith’s recently-announced decision to retire violated ethics rules.

Griffith, a 2005 appointee of Republican President George W. Bush, announced March 5 that he was retiring from the bench in September, just ahead of the 2020 election.

Subsequently, reports emerged that U.S. Senate Majority Leader Mitch McConnell (R-Ky) was privately urging conservative judges to retire to ensure that President Donald Trump can fill their vacancies. There are 92 federal judges that are or will be eligible to retire in 2020 with full benefits, according to a watchdog group Article III Project.

“The coordinated manner of Majority Leader McConnell’s involvement in the judges’ decision-making is quite unprecedented and raises significant ethical questions for the judges who heed his advice,” Demand Justice Senior Counsel Katie O’Connor said in a letter sent Thursday to D.C. Circuit Chief Judge Sri Srinivasan. He was an appointee of President Barack Obama, a Democrat.

Griffith made headlines last month for writing the majority opinion in a D.C. Circuit ruling that House Democrats couldn’t seek the court’s assistance in enforcing compliance with a testimonial subpoena served upon former Trump White House Counsel Don McGahn. The court has since voted to reconsider that ruling en banc.

Demand Justice describes itself on its website as a progressive group determined to restore ideological balance to the federal courts by opposing “extreme” nominees. It specifically accuses Trump of appointing judges based on their loyalty to his agenda.

Neither Griffith nor McConnell immediately responded to requests for comment on the Demand Justice letter. The D.C. Circuit Executive’s Office declined to comment on it.

Mike Davis, president of the Article III Project and former top nominations counsel to Senator Chuck Grassley (R-IA) , said the situation isn’t unprecedented at all. His organization’s website declares its intent to fight for confirmation of the president’s appointees.

“It should come as no surprise that our political leaders encourage retirement-eligible judges to retire or semi-retire when the President’s party that appointed those judges controls the White House,” Davis said. He noted that Democrats—and maybe even Obama himself—urged Justice Ruth Bader Ginsburg to step down in 2014 so that Obama could appoint her successor to the U.S. Supreme Court.

In her letter, O’Connor said, judicial ethics rules prevent judges from engaging in partisan political activity.

“If Judge Griffith coordinated directly with Majority Leader McConnell in an express effort to assure that his successor was chosen by President Trump, such activity could fall within this rule,” she said, adding such agreements undermine the judiciary’s commitment to impartiality.

If the judge accepted anything of value in exchange for stepping down, such as the promise of future employment elsewhere, that too may have violated ethical rules, O’Connor wrote.

“Judge Griffith’s decision to retire outright, instead of assuming senior status, which would allow him to continue hearing active cases while opening the seat for President Trump to fill, makes his announcement particularly suspicious,” the letter said. The public deserves to know if he’s already made arrangements for future employment, the group said.

To contact the reporters on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com; Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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