Before Donald Trump enters office and chooses his successors, a federal judge in North Carolina appointed by former President Barack Obama has reversed his decision to assume senior status, making him the second Democratic appointment to do so.
The Western District of North Carolina’s U.S. District Judge Max Cogburn Jr. was discreetly taken from the federal judiciary’s list of upcoming openings late last month.
Reuters reports that a few weeks after publicly rescinding a senior status petition to semi-retire in October 2023, Bill Clinton appointee U.S. District Judge Algenon Marbley of the Southern District of Ohio declared he would continue to serve.
Due to disagreements among their state senators, President Joe Biden never confirmed a successor for Marbley, who retired on November 8, or nominated anyone to succeed Cogburn, 73, following his announcement of senior status in 2022.
Senators from home states have the authority to support or oppose presidential nominees under the Senate’s “blue slip” process.
Biden’s choice would have required confirmation from Sen. Sherrod Brown, D-Ohio, and Republican Vice President-elect J.D. Vance, a Republican senator from Ohio, according to Marbley. Biden would have needed to get his choice past Thom Tillis and Ted Budd, two Republicans, in North Carolina.
Associated coverage:
Following Cogburn’s removal from the judiciary’s vacancy list, John P. Collins, a law professor at George Washington University, told Reuters last week that Democrats lack the numbers to confirm these [circuit] nominees and that both seats are in red states with two Republican senators. Therefore, you would receive a far right replacement even if Blue Slips returned.
Cogburn, who was nominated and confirmed in 2011 to replace Lacy H. Thornburg, was one of eight district and appellate judges who still had the power to revoke their seniority, according to Reuters.
President Obama also appointed James Wynn of the Fourth Circuit and Judge Jane Stranch of the United States Court of Appeals for the Sixth Circuit.
In exchange for support on Biden’s district court nominees, senators from both parties reportedly agreed to let Trump personally choose the four open appellate slots, despite the fact that Biden has already selected successors for both.
Tillis publicly urged Wynn not to revoke his senior status, claiming that he would be engaging in partisan politics, after he garnered enough Democratic support to thwart Biden’s nomination for Wynn’s seat, North Carolina Solicitor General Ryan Park, according to Reuters.
In floor remarks on Monday, Minority Leader Mitch McConnell, R-Ky., the Senate’s senior Republican, criticized Cogburn and Marbley for what he called “open partisanship” and referred to them as partisan Democrat district judges.
McConnell urged the remaining judges to retire, saying, “As I have warned the judiciary in other matters, if you play political games, expect political prizes.” So let’s hope these judges enjoy their well-earned retirement and act morally.
Let politics be left to the political branches, where we just showed that all sides can cooperate to come to a consensus on a divisive topic like judicial nominations.
Twelve nominations were still pending for the 42 judicial seats that the federal judiciary designated as open as of Tuesday. With a thin 51-49 majority in the House, Democrats are scrambling to approve as many judges and regulators as possible before Trump takes office on January 20.
When Republicans achieve a 53-47 majority in the 2024 election next month—followed by GOP wins in West Virginia, Montana, and Ohio—all of this will change.
As Republican and Democratic leaders converged on Washington for the Senate chamber’s lame-duck session last month, Democratic Senate Majority Leader Chuck Schumer vowed, “We are going to get as many done as we can.”
“If these circuit judges unretire because they don’t like who won the election,” McConnell, who famously led the Republican blockade against then-President Obama’s 2016 attempt to appoint Merrick Garland to the Supreme Court, warned, threatening to punish judges who revoke their senior status for political reasons.
Based on Canons 2 and 5 of the Code of Conduct for U.S. Judges, I can only presume that they will be subject to serious ethics charges, which will likely be followed by repeated recusal. They will also have merited it.
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Eliot Pierce is a dedicated writer for ChiefsFocus.com, covering local crime and finance news. With a keen eye for detail and a passion for storytelling, Eliot aims to provide his readers with clear and insightful analysis, helping them navigate the complexities of their financial lives while staying informed about important local events. His commitment to delivering accurate and engaging content makes him a valuable resource for the community.