CNN
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Recent reversals by two U.S. district judges on their plans to resign their seats, thereby depriving President-elect Donald Trump of the chance to replace them, have focused attention on other judges expected to create valuable vacancies in appeal, but who might change their mind. now that it is clear that President Joe Biden will not choose his successors.
In a scathing speech this week, Senate Minority Leader Mitch McConnell blasted the “two partisan Democratic district judges” who had “failed to retire.” The Kentucky Republican warned that there could be consequences for them and the appellate judges in question if they also reversed their plans to step down.
“This type of partisan behavior undermines the integrity of the judiciary. It exposes bold Democratic blue where there should only be black robes,” said McConnell, who played a central role in the confirmation of a slew of Trump nominees, including three Supreme Court justices. “It is difficult to conclude that this is anything other than open partisanship.”
U.S. District Judge Algenon Marbley, who last year announced his intention to move to senior status after his successor is confirmed, told the White House days after Trump’s election that he was reconsidering these intentions. (Senior status is where a judge is semi-retired, allowing them to continue helping in cases while creating a vacancy for their seat to be filled.)
“A successor has not been confirmed and therefore I have decided to remain active and fully assume the duties and obligations of this position,” said Marbley, appointed by President Bill Clinton and who serves in the Southern District of Ohio. a November 8 letter obtained by CNN. “Please accept this letter as a formal withdrawal of my intention to assume senior status.”
A second judge, Judge Max Cogburn — a Western District of North Carolina judge appointed by President Barack Obama — also informed the White House that he was reversing his retirement plans, Reuters reported last week. His office did not respond to CNN’s request for comment, but, between November 1 and December 1, his name was removed from the list of future vacancies maintained by the Administrative Office of the Judiciary.
Federal judges are confirmed for lifetime terms, and the timing of their retirement is entirely at their discretion, according to John P. Collins, a professor at George Washington Law School who focuses on judicial appointments. Collins suggested that the two justices may have been wary of the types of nominees Trump is proposing, especially given suggestions from his allies that they would select judges even further to the right than in his first term, as well as the Trump’s suggestion to use recess appointments — a process that bypasses Senate approval.
“I can imagine a judge thinking, regardless of which party nominated him the first time, that’s not the person I want to give the power to choose my successor,” Collins said.
In recent years, a handful of judges have also abandoned their retirement plans when they failed to find a preferred successor, including U.S. District Judge Karen Caldwell, a judge who sits in the home state by McConnell. She changed her plans to resign after a deal between the Biden White House and McConnell failed to replace her with a conservative lawyer.
Cogburn and Marbley are also not the first justices to abandon their retirement plans after an election. As McConnell himself pointed out, one district judge made the same about-face after President George W. Bush’s re-election in 2004, and another changed his retirement plans after Obama’s 2008 victory .
Biden had not named candidates to replace Cogburn and Marbley. For any Biden nominee for these district court vacancies to move forward, he would have needed the support of Republican senators from North Carolina and Ohio, according to a Senate tradition known as slips blue.
But Biden named replacements for 6th U.S. Circuit Judge Jane Branstetter Stranch and 4th U.S. Circuit Judge James Andrew Wynn, the two appeals court judges who apparently worry McConnell.
Leaving these vacancies for Trump was the key to a deal the Senate GOP reached with Democrats last month this allowed Biden to see a dozen of his pending district court nominees confirmed before the end of the year. Under the agreement, Republicans ended procedural maneuvers that prevented the confirmation of these nominees and, in exchange, Democrats would not try to confirm Biden’s picks for four circuit seats, including for the seats who should be released by Stranch and Wynn.
“Never before has a circuit judge retired after a presidential election,” McConnell said Monday. “This is literally unprecedented. And setting such a precedent would go against a rare bipartisan compromise on the distribution of these vacant positions.
McConnell suggested that the Trump Justice Department could seek recusal of these judges if cases involving the new administration ended up in their courts, and he warned that these types of recusal requests, as well as ethics complaints, would be addressed to appeal judges if they follow the example of Marbley and Cogburn.
Neither Wynn nor Stranch, in announcing their intention to retire, had indicated a specific date on which they would take senior status. This means they could still change their plans in light of current circumstances.
Senate Democrats noted Monday evening that McConnell allegedly urged GOP-appointed judges to step down in the months leading up to the 2020 election.
“Senator McConnell has no room to talk about which judges decide if and when to retire,” the Senate Judiciary Committee said in an X post.
Collins estimates the chances of Stranch and Wynn changing their plans at more than 50 percent, pointing to the backgrounds of those justices.
Wynn, an Obama appointee, was first selected by Clinton in 1999 but was blocked for several years after his home state’s senator, the late Republican Sen. Jesse Helms of North Carolina, declined his support. Meanwhile, Biden’s nominee to replace Stranch was his former staffer, Karla Campbell, who drew heavy Republican criticism because of her work with a labor rights group.
Campbell and Ryan Park, the nominee chosen to replace Wynn, both faced opposition from their home state Republican senators, but Republicans under Trump ended the tradition of “blue slip” for nominees of the circuit, meaning the opposition alone was not enough to block candidates.
Messages from CNN seeking comments from the two judges submitted to the courts were not returned.
Russell Wheeler — a nonresident fellow in the Brookings Institution’s Governance Studies program who studies the selection of federal judges — said McConnell had “a weak moral foundation to stand on,” given his tactics in matter of judicial confirmations, which included blocking Obama’s nominees until the end. until Obama’s pick for the Supreme Court, Merrick Garland.
But Wheeler said McConnell “could have the effect he wants” if the two appeals judges “waver” over whether or not to honor their retirement plans.