Trump’s victory has some liberal judges reversing their retirement plans

By Tierney Sneed, CNN

(CNN) — The recent reversals by two US district judges on plans to step down from their seats, effectively denying President-elect Donald Trump the opportunity to replace them, has put attention on other judges slated to create prized appellate vacancies but who could have a change of heart now that its clear President Joe Biden won’t choose their successors.

In a scathing speech this week, Senate Minority Leader Mitch McConnell lambasted the “two partisan Democrat district judges” who had “unretired.” The Kentucky Republican warned that there could be consequences for them and for the appellate judges in question if they also backtrack on their plans to step aside.

“This sort 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 pivotal role in confirming scores of Trump nominees, including three Supreme Court justices. “It’s hard to conclude that this is anything other than open partisanship.”

US District Judge Algenon Marbley, who had announced last year plans to enter so-called senior status upon the confirmation of his successor, told the White House days after Trump’s election that he was rescinding those intentions. (Senior status is when a judge serves in a semi-retired capacity, allowing them to still help out with cases while creating a vacancy for their seat to be filled.)

“A successor has not been confirmed, and I have therefore decided to remain on active status and carry out the full duties and obligations of the office,” Marbley, an appointee of President Bill Clinton who sits in the Southern District of Ohio, said in 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 he was backtracking on 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 administrative office of the judicial branch.

Federal judges are confirmed for lifetime tenures, and it’s entirely in their discretion when to retire, according to John P. Collins, a professor at George Washington Law School who focuses on judicial nominations. Collins suggested that the two judges may have been wary of the types of nominees Trump would put forward, particularly given his allies’ suggestions that they’d select judges even farther to the right than in his first term as well as Trump’s floating of the use of recess appointments – a process that sidesteps Senate approval.

“I can imagine a judge thinking, no matter the party that appointed them the first time, that this is not the person I want to give the power to choose my successor to,” Collins said.

Other judges have reversed retirement plans after elections

A handful of judges in recent years have also reversed retirement plans when they have not been able to secure a preferred successor, including US District Judge Karen Caldwell, a judge who sits in McConnell’s home state. She changed her plans to step down after a deal between the Biden White House and McConnell to replace her with a conservative lawyer fell apart.

Cogburn and Marbley are also not the first judges to back off retirement plans after an election. As McConnell himself highlighted, a district judge did the same about-face after President George W. Bush’s reelection in 2004, and another changed his retirement plans when Obama won in 2008.

Biden had not named nominees to replace Cogburn and Marbley. For any Biden nominee for those district court vacancies to go forward they would have needed the support of the Republican senators from North Carolina and Ohio, under a Senate tradition known as blue slips.

But Biden did nominate replacements for 6th US Circuit Judge Jane Branstetter Stranch and 4th US Circuit Judge James Andrew Wynn, the two appeals court judges McConnell is apparently 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 see a dozen-or-so of his pending district court nominees confirmed before the end of the year. Under the agreement, Republicans ended procedural maneuvers that were stymieing the confirmation of those nominees and in exchange, Democrats would not try to confirm Biden picks for four circuit seats, including for the seats set to be vacated by Stranch and Wynn.

“Never before has a circuit judge unretired after a presidential election,” McConnell said Monday. “It’s literally unprecedented. And to create such a precedent would fly in the face of a rare bipartisan compromise on the disposition of these vacancies.”

McConnell suggested that the Trump Justice Department could seek the recusal of those judges if cases involving the incoming administration landed in their courts, and he warned that those kinds of recusal requests, as well as ethics complaints, would come the way of the appellate judges if they follow Marbley and Cogburn’s example.

Neither Wynn nor Stranch, when announcing their plans to step aside, had indicated a set date on which they would take on senior status. That means that they could still change their plans in light of the current circumstances.

Senate Democrats noted Monday evening that McConnell reportedly urged GOP appointed judges to step down in the months before the 2020 election.

“Senator McConnell has no room to talk when it comes to judges deciding if and when to retire,” the Senate Judiciary Committee said in X post.

Collins put the odds of Stranch and Wynn changing their plans at more than 50%, as he pointed to those judges’ backstories.

Wynn, an Obama appointee, was first selected for the appeals court by Clinton in 1999, but was stalled for several years after his home state senator, late Republican Sen. Jesse Helms, of North Carolina, withheld support. Meanwhile, the Biden nominee to replace Stranch was her former clerk, Karla Campbell, who attracted pointed Republican criticism due to her work with a labor rights group.

Both Campbell and Ryan Park, the nominee picked to replace Wynn, faced opposition from their home state GOP senators, but Republicans under Trump ended the blue slip tradition for circuit nominees, meaning that opposition was not on its own enough to block the nominees.

CNN’s messages seeking comment from the two judges submitted with the judges’ courts were not returned.

Russell Wheeler – a non-resident fellow in the Brookings Institution’s Governance Studies program who studies federal judicial selection – said McConnell had “weak moral ground to stand on,” given his tactics on judicial confirmations, which included a blockade of Obama nominees all the way up to an Obama pick for the Supreme Court, Merrick Garland.

But, Wheeler said that McConnell “may be having the effect he wants” if the two appellate judges are “wavering” about whether to keep to their retirement plans.

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