Trump’s election sparks fight over judicial retirements, new judgeships

Three federal judges appointed by Democrats have changed their retirement plans ahead of President-elect Donald Trump’s return to the White House, with a fourth being warned on the Senate floor not to follow suit.

It is rare in the federal court system for judges to retract declarations of senior status, a form of semi-retirement that creates a vacancy on the court. Key Republicans have sharply criticized the decisions, which ensure that Trump - who pushed the courts substantially to the right during his first term in office - will not immediately get the chance to name successors for those judicial seats.

Legal experts see the judges’ actions as part of the broader political jockeying over a federal court system whose judges have lifetime appointments and whose rulings can shape policy over multiple administrations.

Senate Democrats raced to confirm as many nominees of President Joe Biden as possible after the election, knowing that they would not be confirmed once a Republican-majority Senate is sworn in early next year, and that Trump will soon begin making his own nominations. The last two confirmations came Friday, leaving Biden with 235 judicial appointments, one more than Trump had during his first term.

On Monday, Biden vetoed the Judges Act, which would have created dozens of new judgeships to ease growing caseloads. The bill had bipartisan support in the Senate this summer, but House Republicans balked at passing it until Trump won the election.

The judiciary’s impact on American life has grown in recent years as Congress has stalemated on key issues and courts have waded into contentious disputes over abortion, same-sex marriage, gender-affirming care and other issues. District judges can have nationwide impact by issuing injunctions that block policies from going into effect. Appeals courts have the authority to overturn lower-court decisions and can be the final word in legal disputes, unless the Supreme Court intervenes.

Studies show clear differences in how Republican-appointed judges and Democratic-appointed judges rule.

“Somehow, almost every controversy makes its way to the courts,” said Joshua Blackman, a constitutional law professor at South Texas College of Law Houston. “And with the increase of these nationwide injunctions, a single judge somewhere, anywhere, can basically put a president’s agenda on hold almost indefinitely.”

The politicization of the judiciary extends to the confirmation process, with lawmakers often confirming the president’s picks along party lines or leaving them to languish in the Senate for months.

“Every nomination is a knockdown, drag-out battle, and Republicans and Democrats are mustering close to all their members to vote pretty much in lockstep against any nominee of the other party,” said Russell Wheeler of the Brookings Institution.

The battles come as Americans’ trust in the federal court system has fallen precipitously, from 59 percent to 35 percent over the past four years, according to a Gallup poll released this month. That period is marked by the fall of Roe v. Wade, which guaranteed a constitutional right to an abortion, and the criminal prosecutions of Trump in both state and federal court.

It is one of the steepest declines Gallup has measured globally since it began tracking confidence in the judicial system in 2006, placing the United States on a par with countries including Myanmar, Venezuela and Syria. A separate recent survey shows public interest in state courts increased for the second consecutive year.

‘Brazenly partisan’

One of the judges who changed his retirement plans is James A. Wynn Jr., 70, who sits on the Richmond-based U.S. Court of Appeals for the 4th Circuit. He told the White House in January that he would take senior status upon the confirmation of his successor to the 4th Circuit, which covers Maryland, North Carolina, South Carolina, Virginia and West Virginia. Nine out of the 15 active judges on the circuit were appointed by Presidents Bill Clinton, Barack Obama or Joe Biden.

Biden tapped North Carolina Solicitor General Ryan Y. Park to fill Wynn’s seat. Park withdrew his nomination this month, however, after a post-election deal struck by Democrats and Republicans in the Senate. Republicans agreed to advance all Biden’s remaining district court nominees in exchange for dropping the four who were awaiting confirmation to an appeals court seat.

The deal preserved for the incoming administration vacancies on the 1st and 3rd Circuits, where Judges William J. Kayatta Jr., took senior status on Oct. 31 and Joseph A. Greenaway Jr. retired in 2023. It was also supposed to allow for vacancies on the 4th and 6th Circuits, where Wynn and Judge Jane Branstetter Stranch had announced plans to take senior status once their successors were confirmed.

But Wynn rescinded his senior status declaration on Dec. 13. He joins Max O. Cogburn Jr., 73, of the Western District of North Carolina and Algenon L. Marbley, 70, of the Southern District of Ohio in saying they will remain on full duty for the foreseeable future - denying Trump the opportunity to fill their seats. Marbley reversed his decision to take senior status on Nov. 8, three days after the election. Cogburn’s name disappeared from the judiciary’s list of future vacancies in late November.

Stranch, who sits on the 6th Circuit, did not respond to requests for comment about her retirement plans. But Senate Minority Leader Mitch McConnell (R-Kentucky) warned in a speech on the Senate floor this month that judges who change their plans could face “significant ethics complaints.”

The reversals have drawn severe backlash from Republicans and conservative groups, with Sen. Thom Tillis (R-North Carolina) saying Wynn’s decision not to take senior status shows “some judges are nothing more than politicians in robes.”

Conservative attorney Ed Whelan sided with Tillis, noting that any action that comes across as “brazenly partisan” can harm the judiciary.

“There’s a lot of public discourse that judges are being too political, and when a judge withdraws senior status, I think that sells the case,” Blackman said.

The Article III Project, a conservative judicial advocacy group founded by Trump ally Mike Davis, has filed misconduct complaints against Wynn, Cogburn and Marbley, accusing them of violating the code of conduct for federal judges. In his floor speech, McConnell questioned the ability of judges who withdraw their retirement plans after an election to remain impartial in future cases. He suggested the incoming administration explore all available options to seek the recusal of such judges on cases that involve the federal government.

Nomination battles

Senior status reversals are just one aspect of the growing politicization of the courts, Wheeler said. He also pointed to the drawn-out fights over judicial nominations, noting McConnell’s role in blocking Obama’s pick to replace the late justice Antonin Scalia when McConnell was majority leader.

“There’s plenty of hypocrisy to be attributed to both sides, it seems to me,” Wheeler said.

The process by which senators confirm judges has changed over the years, with lawmakers rarely agreeing on a candidate. Historically, the Senate confirmed most appeals and district court nominees by unanimous consent or voice vote. During the Biden and Trump administrations, roll call votes became more common. For example, 100 percent of President George H.W. Bush’s district court nominees were confirmed by unanimous consent or voice vote, compared with 19 percent of Trump’s nominees, according to the Congressional Research Service.

During his first term in office, none of Clinton’s district court nominees received “no” votes, while only 7 percent of his appeals court nominees received more than 30 “no” votes, according to the Brookings Institution’s Katzmann Initiative. In contrast, 80 percent of Biden’s district court nominees have received more than 30 “no” votes, along with 91 percent of his appeals court picks as of September.

When judicial nominees aren’t confirmed by a slim majority, they often face a different fate in the Senate: limbo.

Adeel A. Mangi, who would have been the nation’s first Muslim American appeals court judge, had been waiting for a Senate confirmation vote since January. He faced opposition from Republicans and some Democrats over his ties to various groups, including a criminal justice organization that advocates on behalf of incarcerated people and a law school center for Muslim, Arab and South Asian Americans. The White House called the attacks part of a “cruel, Islamophobic, smear campaign” to tank his nomination.

Mangi, whose path to confirmation vanished under the Senate deal, derided the “fundamentally broken process for choosing federal judges” in a letter addressed to Biden earlier this month.

“This is no longer a system for evaluating fitness for judicial office,” he wrote. “Nominees pay the price-and so too does our nation. Who will give up the rewards of private sector success for public service, if the added price is character assassination and wading though a Senatorial swamp like this one?”

A bipartisan about-face

Experts have described the passage of the Judges Act this summer as one of the rare, fleeting moments of bipartisanship in Washington. The bill would have created 66 new federal judgeships in 13 states over the span of 10 years, helping to ease delays caused by growing caseloads.

Lawmakers had agreed to move the bill through Congress over the summer before the presidential election, with the Senate approving the measure unanimously in August. But the bill languished in the House until a month after the election, when the Republican majority brought it for a floor vote.

Biden vetoed the bill on Monday after leading Democratic lawmakers who once backed it withdrew their support, wary of handing Trump new judgeships to fill.

“So what was a bipartisan, sort of rare-to-be-seen-anymore good government effort to provide some needed support to districts that need it, turned into a partisan fight,” Wheeler said. “And I think you can blame both parties for it.”