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Mitch McConnell's quest to remake the national judiciary has hit a snag

Though it’s tempting to think about the modern GOP exclusively through the lens of President Trump, Mitch McConnell has arguably played a much greater role in extending and maintaining the Republican Party’s power across all branches of government. Even if Trump were to lose the November election by a landslide — potentially even costing McConnell his seat — the Kentucky senator’s influence would extend far into the future, thanks to his unparalleled influence power over the American judiciary system. As the Senate majority leader, McConnell has so far led the confirmation of 193 federal judges during Trump’s presidency, including two Supreme Court justices in Neil Gorsuch and Brett Kavanaugh. He also successfully blocked President Barack Obama from filling numerous vacancies, including the Supreme Court seat that went to Gorsuch.

Last year, on Fox News, host Sean Hannity mentioned to McConnell that he was surprised Obama had left McConnell so many vacancies to fill. "I'll tell you why," McConnell responded, laughing. "I was in charge of what we did the last two years of the Obama administration."

"Take a bow," Hannity said, with a smile.

When all is said and done, Democrats will likely need generations to undo the impact that McConnell has had on the nation’s court system. In the meantime, that reactionary judicial power could effectively block all sorts of progressive legislative projects, ranging from gun control to climate change mitigation, as lower courts helmed by conservative jurists might be inclined to strike down any sweeping policy changes, much like they did with the Affordable Care Act.

McConnell’s latest target is a powerful seat on the prestigious U.S. Court of Appeals for the District of Columbia Circuit, the second-highest court in America. He’s reconvened the Senate this week, pandemic be damned, in order to push the confirmation of his protegé Justin Walker, a 37-year-old former clerk for Kavanaugh who was determined to be “Not Qualified” for the position by the American Bar Association.

A progressive group called Demand Justice has called for a probe into Walker’s nomination. The group filed a complaint in March responding to reports that McConnell has been encouraging justices appointed by Republicans to retire now, so that their seats can be filled by the current Republican president, and further alleges that the vacancy Walker is seeking to fill was created this way. And now, the chief justice of the D.C. court of appeals has allowed this inquiry to move forward: On May 1, Judge Sri Srinivasan, an Obama appointee, asked Supreme Court Chief Justice John Roberts to designate another circuit court to consider Demand Justice’s challenge to Walker’s nomination.

Demand Justice claims that outreach from McConnell may have caused Justice Thomas B. Griffith to retire from the D.C. court of appeals in March. Now that McConnell has already filled most of the remaining vacancies on the courts, the group argues, he’s trying to pressure judges into creating new ones, which could be an ethical violation. According to The New York Times, there is no proof that McConnell has spoken with Griffith, and the senator refused a request for comment from the paper.

When all is said and done, Democrats will likely need generations to undo the impact that McConnell has had on the nation’s court system.

Still, Demand Justice believes McConnell was involved, because of the timing of the reports regarding his outreach to judges and Griffith’s retirement. “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,” the group wrote in its demand for an investigation. It asked for a “thorough inquiry into the judge’s announcement and scheduled retirement, including when and how the decision to retire was made, and with whose input, is crucial.”

Srivinasan wrote in his letter to Roberts that Demand Justice's "request for an inquiry concerns the decision of a judge of this court to retire from service and the resulting creation of a vacancy on this court, which would be filled by a future colleague on this court." Srinivasan explained that his ruling did not result from "any inquiry by this court into the statements contained in the unverified correspondence, or the questions posited by the organization in the correspondence about the possibility of judicial misconduct." Rather, he asked for another court to conduct such an inquiry into "the possibility of judicial misconduct," referring to the possibility of McConnell applying pressure on the judge.

Roberts, an appointee of former President George W. Bush whose rulings have generally leaned conservative, could very well dismiss Srinivasan’s letter and allow Walker’s nomination to move forward. If he does, the whole affair can be seen as a highly instructive example in how McConnell has masterfully outplayed Democrats over the past decade, leaving a mark on the country’s judiciary that will last long after he’s left office.

Update 5:10 p.m. ET: Griffith denies that McConnell pressured him to retire in a statement to NPR. "My decision was driven entirely by personal concerns and involved no discussions with the White House or the Senate," his statement read. He added that his wife suffers from a "debilitating chronic illness" which is "the sole reason for my retirement."