BURSTA handful of federal judges appointed by Democrats have put off retirement plans in the wake of President-elect Trump’s election victory, raising questions about the ethics of their decisions as judicial vacancies for the next administration dwindle.
Legal experts said judges have discretion to decide when to retire, and while walk-backs are rare, it’s become increasingly common to hinge those decisions on who’s in the White House to pick their successors and in the Senate to confirm them.
"As the Senate becomes more partisan, more polarized, more politicized, it seems like the assumption of senior status and retirement — when people leave the bench or go to senior status — has become similarly politicized, partisan," said Carl Tobias, a law professor at University of Richmond who studies federal judicial selection. “And I think that's unfortunate.”
Judge James Wynn, an appointee of former President Obama on the 4th U.S. Circuit Court of Appeals, on Friday reversed his decision to retire from active service on the bench and assume “senior status,” which is when a judge serves in a semi-retired capacity, creating a vacancy for their seat to be filled.
The announcement came after President Biden’s intended replacement for Wynn’s seat withdrew his nomination once it became apparent he would not receive Senate confirmation. Senators reportedly struck a deal to let Biden's remaining district court nominees advance without stalling tactics by Republicans if Wynn and another appellate judge’s seats were left open for Trump to fill.
The judge's decision to stay on effectively blocks Trump from seating a successor instead.
U.S. District Judges Max Cogburn in North Carolina and Algenon Marbley in Ohio, both appointed by Democrats, also rescinded their intentions to assume senior status following the presidential election.
The decisions drew sharp rebuke from top Republicans, who have criticized the “un-retirements” as open partisanship.
Senate Republican leader Mitch McConnell (R-Ky.) claimed decisions by Cogburn and Marbley to hold off on senior status exposed “bold Democratic blue where there should only be black robes.” Sen. Thom Tillis (R-N.C.) said ethics complaints and recusal demands against Wynn would be deserved.
The conservative Article III Project, founded by Trump ally Mike Davis, filed judicial misconduct complaints against all three judges.
But legal experts say strategic retirements from active service, based on which party controls the White House instead of other nonpartisan reasons, have grown more common in recent decades.
“There are all sorts of personal considerations that are going to go into when somebody feels they are ready to retire," said John P. Collins, a law professor at George Washington University with expertise in judicial nominations. “As the data bears out, particularly recently, the party of the president who is going to appoint the replacement is clearly one of those factors.”
A 2023 data analysis published in the Minnesota Law Review found that judges are increasingly taking senior status at politically advantageous times.
Under former President George W. Bush, more than 70 percent of federal judges seeking senior status were appointed by a Republican president, the study found. That increased to more than 80 percent during Trump’s administration, and in about the first two years of Biden’s administration, about 65 percent of judges taking senior status were appointed by a Democratic president.
At least three Republican-appointed judges have also rescinded their decisions to take senior status in the past two decades: U.S. District Judges Rudolph Randa, after Obama’s 2008 election; Michael Kanne, after Trump didn’t select his preferred successor; and Karen Caldwell, after her preferred successor fell through.
“It is pension plus politics that drives a lot of these decisions,” said Christina Boyd, a law professor at Washington University in St. Louis who studies judicial behavior. "You always wait until your pension vests, and then you oftentimes will also look to the political environment around you.”
Think tanks and advocacy groups from judicial watchdog Fix the Court to the libertarian Cato Institute have condemned the practice of judges seeking to control the succession of their seat on the bench.
But politics often infect the process anyway.
Senate Judiciary Committee Chair Dick Durban (D-Ill.) noted on the floor earlier this month that McConnell blocked then-Judge Merrick Garland, whom Obama had nominated to serve on the Supreme Court in 2016, from even getting a hearing while Republicans controlled the upper chamber. Senate Republicans also kept Justice Antonin Scalia’s seat vacant for nearly a year following his death, giving Trump a chance to nominate Judge Neil Gorsuch in 2017.
Trump’s election win sparked debate about retirement from the nation’s highest court, too, with members of both parties debating whether the Supreme Court’s oldest justices should step down before or during the next administration.
Two of the court’s leading conservatives, Justices Clarence Thomas and Samuel Alito, are 76 and 74 years old, respectively. Justice Sonia Sotomayor, the court’s most senior liberal, is 70.
“There's always been a political element to judicial retirements’ Venn diagram,” Collins said.