With President-elect Donald Trump‘s impending return to the White House, some Democratic-appointed judges are having second thoughts about retiring and allowing him to appoint successors.
Judge James Wynn of the U.S. Court of Appeals for the 4th Circuit, who was nominated to the position by then-President Barack Obama in 2010, rescinded his retirement notice over the weekend, becoming the third Democratic-appointed judge on a federal court to do so in the wake of Trump’s victory last month.
“I write to advise that, after careful consideration, I have decided to continue in regular active service as a United States Circuit Judge for the Fourth Circuit. As a result of that decision, I respectfully withdraw my letter to you of January 5, 2024. I apologize for any inconvenience I may have caused,” Wynn said in a letter to President Joe Biden, dated Friday.
Biden had nominated North Carolina Solicitor General Ryan Park to fill Wynn’s seat, but after opposition from both senators from the Tar Heel State, the president withdrew his nomination on Thursday.
Sen. Thom Tillis (R-NC) slammed the decision by Wynn, calling it a “brazenly partisan decision” and a “slap in the face” to the Senate, which confirms replacements for judges.
Judge Wynn's brazenly partisan decision to rescind his retirement is an unprecedented move that demonstrates some judges are nothing more than politicians in robes. Judge Wynn clearly takes issue with the fact that @realDonaldTrump was just elected President, and this decision is…
— Senator Thom Tillis (@SenThomTillis) December 14, 2024
“Judge Wynn’s brazenly partisan decision to rescind his retirement is an unprecedented move that demonstrates some judges are nothing more than politicians in robes. Judge Wynn clearly takes issue with the fact that [Donald Trump] was just elected President, and this decision is a slap in the face to the U.S. Senate, which came to a bipartisan agreement to hold off on confirming his replacement until the next Congress is sworn-in in January,” Tillis said in a post on X.
“The Senate Judiciary Committee should hold a hearing on his blatant attempt to turn the judicial retirement system into a partisan game, and he deserves the ethics complaints and recusal demands from the Department of Justice heading his way,” he added.
Park was one of four judicial nominees, which Democrats in the Senate had agreed not to move forward last month in exchange for the GOP ending its blockade of lower district court nominees to get quick votes. The other three federal appeals court nominees whose confirmation processes were aborted in the deal include Julia Lipez for the 1st Circuit, Karla Campbell for the 6th Circuit, and Adeel Mangi for the 3rd Circuit.
Of the other three slots, only one, Judge Jane Stranch of the U.S. Court of Appeals for the 6th Circuit, has said her retirement is pending a new nominee being confirmed to the seat. Wynn had also said his retirement was pending a new nominee being confirmed but then rescinded his retirement.
The other two vacancies that will remain open were caused by judges who have either assumed senior status, a form of retirement, or retired completely from the federal bench.
Two other federal judges rescinded their retirements after Trump won the election.
Max Cogburn
Last month, Judge Max Cogburn of the U.S. District Court for the Western District of North Carolina, who was appointed by Obama, walked back his 2022 decision to assume senior status.
Cogburn did not say why he had changed his mind about stepping away from his duties, though his name was on a list of judges who had planned on stepping down who didn’t have a clear replacement.
Biden had the authority to nominate a replacement for the judge, though it wasn’t clear he would have had support from both of the state’s U.S. senators, who, under the Senate’s “blue slip” policy, have the ability to weigh in on a president’s judicial nominations.
Algenon Marbley
Judge Algenon Marbley of the U.S. District Court for the Southern District of Ohio was the first Democratic-appointed judge who reversed his decision to retire after it was clear he would not be replaced by a Democratic president.
Marbley announced his plans to take senior status in October 2023 and then walked back that decision on Nov. 8. Marbley was appointed by then-President Bill Clinton.
Though Biden could have appointed someone to replace Marbley for more than a year, there was no announcement of who might be put into the seat. Marbley said the lack of a successor was why he decided to reverse his decision.
“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 wrote in the letter to the White House, according to Reuters.
Political timing
It’s not uncommon for federal judges to time their retirements or ascent to senior status with a change in administration, though it’s rare to see judges change their minds about retirement.
Senate Minority Leader Mitch McConnell (R-KY) bashed the two judges for reversing their decisions to retire earlier this month, saying the reason for the reversal was clear.
“It’s hard to conclude that this is anything other than open partisanship. They rolled the dice that a Democrat could replace them, and now that he won’t, they’re changing their plans to keep a Republican from doing it. It’s a brazen admission. And the incoming administration would be wise to explore all available recusal options with these judges because it’s clear now that they have a political finger on the scale,” McConnell said on the Senate floor.
“This sort of partisan behavior undermines the integrity of the judiciary. It exposes bold Democratic blue where there should only be black robes,” he added.
More retirements
There are 11 vacancies in the federal judiciary, three of which have pending replacement nominees.
It’s not clear that any other judges are planning on reversing their decision to step away from full-time work on the bench, though there are four Democratic-appointed judges on the list who are set to step down next year.
Judge Nancy Torresen of the U.S. District Court for the District of Maine was appointed by Obama in 2011. She announced her plans to take senior status on Oct. 1, 2024, and is scheduled to vacate her seat on Oct. 11, 2025.
Judge Catherine Eagles of the U.S. District Court for the Middle District of North Carolina was appointed by Obama in 2010. She announced her plans to take senior status on Jan. 31, 2024, and is scheduled to vacate her seat on Dec. 31, 2024.
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Judge Loretta Copeland Biggs of the U.S. District Court for the Middle District of North Carolina was appointed by Obama in 2014. She announced her plans to take senior status on March 4, 2024, and is scheduled to vacate her seat on Dec. 31, 2024.
Judge Daniel D. Crabtree of the U.S. District Court for the District of Kansas was appointed by Obama in 2014. He announced his plans to take senior status on Aug. 19, 2024, and is scheduled to vacate his seat on Aug. 11, 2025.