Trump’s victory has led some liberal justices to reverse their retirement plans

CNN
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The recent reversal of plans by two U.S. district judges to resign their seats, effectively denying President-elect Donald Trump the opportunity to replace them, has focused attention on other judges slated to create valuable appellate vacancies but who have their opinions could change It is now clear that President Joe Biden will not choose their successors.

In a scathing speech this week, Senate Minority Leader Mitch McConnell criticized the “two partisan Democratic district judges” who “did not retire.” The Kentucky Republican warned that there could be consequences for her and the appellate judges in question if they, too, abandoned their plans to resign.

“This type of partisan behavior undermines the integrity of the judiciary. “It shows bold Democratic blue where there should only be black robes,” said McConnell, who played a key role in confirming numerous Trump nominations, including three Supreme Court justices. “It’s hard to conclude that this is anything other than blatant partisanship.”

U.S. District Judge Algenon Marbley, who announced plans last year to achieve so-called senior status after confirming his successor, told the White House days after Trump’s election that he was revoking those intentions. (Senior status occurs when a judge serves in a semi-retired role that allows him or her to continue assisting with cases while creating a vacancy for his or her seat to be filled.)

“A successor has not been confirmed and I have therefore decided to remain in active status and carry out all duties and responsibilities of the office,” Marbley, an appointee of President Bill Clinton who sits in the Southern District of Ohio, told CNN received letter dated November 8th. “Please accept this letter as a formal withdrawal of my intention to assume senior status.”

A second judge, Judge Max Cogburn – a President Barack Obama appointee for the Western District of North Carolina – also told the White House he was reversing his retirement plans, Reuters reported last week. His chambers did not respond to CNN’s request for comment, but sometime between November 1 and December 1, his name was removed from the list of future vacancies maintained by the Judiciary Administrative Office.

According to John P. Collins, a professor at George Washington Law School who focuses on judicial nominations, federal judges are confirmed for life terms and have complete discretion as to when they retire. Collins suggested that the two justices may have been cautious about what kind of nominees Trump would put forward, particularly given suggestions from his allies that they would select judges even further to the right than in his first term, as well as Trump’s disclosure of the stakes of recess appointments – a process that bypasses Senate approval.

“I can imagine a judge, regardless of the party that first appointed him, thinking that this is not the person I want to give the power to choose my successor,” Collins said.

A handful of judges have also reversed retirement plans in recent years when they have been unable to find a preferred successor, including U.S. District Judge Karen Caldwell, a judge who sits in McConnell’s home state. She changed her plans to resign after an agreement between the Biden and McConnell White House to replace her with a conservative lawyer fell through.

Cogburn and Marbley also aren’t the first justices to back away from retirement plans after an election. As McConnell himself pointed out, one district judge made the same about-face after President George W. Bush was re-elected in 2004, and another changed his retirement plans when Obama won in 2008.

Biden had not named any candidates to replace Cogburn and Marbley. For a Biden nominee to be nominated for the vacant district court vacancies, he would have needed the support of Republican senators from North Carolina and Ohio, according to a Senate tradition known as “blue slips.”

But Biden nominated replacements for 6th U.S. Circuit Court Judge Jane Branstetter Stranch and 4th U.S. Circuit Court Judge James Andrew Wynn, the two appeals court judges that McConnell appears to be worried about.

Leaving those vacancies open for Trump was key to a deal the Senate GOP reached with Democrats last month that cleared the way for Biden to confirm about a dozen of his impending District Court nominees before the end of the year see. Under the agreement, Republicans ended procedural maneuvers that hampered the confirmation of those nominees, and in return, Democrats would not seek to confirm Biden’s picks for four county seats, including the seats vacated by Stranch and Wynn.

“Never before has a district judge retired after a presidential election,” McConnell said Monday. “It’s literally unprecedented. And setting such a precedent would contradict a rare bipartisan compromise on filling these vacancies.”

McConnell suggested that the Trump Justice Department could seek the removal of these judges if cases involving the new administration end up in their courts, and he warned that these types of removal requests, as well as ethics complaints, would be presented to appellate judges if so the case would be you follow the example of Marbley and Cogburn.

Neither Wynn nor Stranch had provided a firm date for when they would assume senior status when announcing their retirement plans. This means they could still change their plans given the current circumstances.

Senate Democrats noted Monday night that McConnell had reportedly called on Republican Party-appointed justices to resign in the months leading up to the 2020 election.

“Senator McConnell has no leeway when it comes to judges deciding whether and when to retire,” the Senate Judiciary Committee said in X-Post.

Collins put the likelihood of Stranch and Wynn changing their plans at more than 50%, citing the backstories of these judges.

Wynn, an Obama appointee, was first selected by Clinton for the appeals court in 1999 but was blocked for several years after his home senator, the late Republican Sen. Jesse Helms of North Carolina, withheld support. Meanwhile, Biden’s successor to Stranch was her former employee Karla Campbell, who drew sharp criticism from Republicans for her work for a labor rights group.

Both Campbell and Ryan Park, the candidate chosen to replace Wynn, faced opposition from their home state’s GOP senators, but Republicans under Trump ended the blue slip tradition for county candidates, meaning the Opposition alone was not enough to block the nominees.

CNN’s messages sent to the judges’ courts seeking comment from the two justices were not returned.

Russell Wheeler – a non-resident fellow in the Brookings Institution’s Governance Studies program who studies federal judge selection – said McConnell had “a weak one” given his tactics in judicial confirmations, which included a consistent blockade of Obama nominees moral basis on which it could rely”. to an Obama Supreme Court pick, Merrick Garland.

But Wheeler said McConnell “may have the desired effect” if the two appeals judges are “undecided” about whether to stick with their retirement plans.