Ask any conservative what kind of judges they like, and they’ll say they want “originalists” and “strict constructionists,” meaning they are guided by the intent of the Framers and the text of the Constitution. They’ll also insist that judges should “apply the law, not make the law,” i.e., that they shouldn’t impose their values to achieve desired outcomes.

These are lies. Conservatives are quite happy with the most aggressive forms of the “judicial activism” they pretend to abhor, so long as they get the results they want, which usually involves favoring those with power.

And every once in a while, one of them drops the pretense that they have some kind of principled vision for the judiciary that exists outside ideology, admitting that they just want to move the courts to the right.

Sen. Lindsey O. Graham, the chair of the Senate Judiciary Committee, just did this in an interview with radio host (and Post Opinions contributor) Hugh Hewitt, calling on judges of a certain age to clear out and make room for younger ones:

“This is an historic opportunity,” Graham said. “We’ve put over 200 federal judges on the bench. … If you can get four more years, I mean, it would change the judiciary for several generations. So if you’re a circuit judge in your mid-60s, late 60s, you can take senior status, now would be a good time to do that, if you want to make sure the judiciary is right of center.” [ …]
In Thursday’s interview, Hewitt asked Graham whether he could assure judges who take senior status now that their successor “will indeed be confirmed before the election.”
“Well, if you wait, you know, November the 1st, no,” Graham said. “So do it now. … I need some time.”

When he suggests Nov. 1 as a kind of deadline, Graham may be trying to light a fire under conservative judges to get them to retire before the election. But if anything, he’s underestimating his ability, and that of Senate Majority Leader Mitch McConnell (R-Ky.), to ram through judges in an emergency — the emergency being the election of a Democratic president or a Democratic Senate.

If President Trump loses the election, the two and a half months before Joe Biden is inaugurated will see all manner of last-minute horrors. And the appointment and confirmation of as many judges as possible — one of the few things the next president can’t undo — will be near the top of the list.

There’s a good chance (though it’s by no means a certainty) that if Trump loses, Republicans will lose the Senate, too, as they ride his coattails of catastrophe right back to minority status. Should that happen, the real deadline is Jan. 3, when the 116th Congress completes its term; after that, Democrats would be in charge and no more Trump judges would be confirmed.

In ordinary times, it can take months or even (in some cases) years for a judge to be confirmed. The administration takes time to find a candidate, who is eventually scheduled for a hearing and then a vote in the Judiciary Committee, and finally a vote on the Senate floor.

But all that can be expedited if Republicans wish. They may not be able to nominate someone in the morning and have him (and it’ll usually be a “him” — under Trump judges have been overwhelmingly white and male) confirmed by dinner time, but they can make the process go nearly as fast as they want. As the minority party, Democrats have few tools to slow the confirmation process down.

And McConnell clearly sees this as a core part of the legacy he will leave from his time in power: He has pledged to “leave no vacancy behind.” Right now there are 80 judicial vacancies on the federal courts; 48 of them have nominees whose confirmation is pending.

Should Trump lose, you can bet that the day after, McConnell will be on the phone to the White House Counsel’s Office demanding that they nominate someone for every vacant seat, ASAP. It won’t matter who — somebody’s neighbor, somebody’s nephew (there isn’t even a requirement that judges be lawyers) — so long as they’re committed conservatives, and as young as possible so they can serve for decades. McConnell will probably personally be calling older sitting judges to get them to step down so their seats can be filled.

It will be a frenzy. And the only thing that will determine how close McConnell gets to his goal is whether the Trump White House has its act together enough to send over all the names.

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