WASHINGTON — For the third time since Donald Trump won the presidential election last month, a federal judge is canceling plans for retirement, effectively denying Trump the ability to fill that court seat with someone younger and more ideologically conservative.
“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,” U.S. appeals court judge James Wynn wrote to President Joe Biden on Friday.
“As a result of that decision, I respectfully withdraw my letter to you of January 5, 2024,” said Wynn. “I apologize for any inconvenience I may have caused.”
The White House did not respond to a request for comment.
Wynn is the first U.S. appeals court judge to rescind his resignation since Trump won, but the third federal judge to do so. The other two are North Carolina District Judge Max Cogburn, who is 73, and Ohio District Judge Algenon Marbley, who is 70. All are Democratic appointees, and all hold lifetime appointments.
Wynn, 70, had told the White House in January that he planned to retire as soon as his successor was confirmed. In July, Biden nominated Ryan Park, who is currently the solicitor general of North Carolina, to replace him.
Park made it all the way through the Senate nomination process and was waiting for a final confirmation vote — until Senate Majority Leader Chuck Schumer (D-N.Y.) cut a deal with Republicans last month to confirm nine of Biden’s district court nominees in exchange for not holding votes on any of Biden’s four remaining appeals court nominees.
The deal essentially killed Park’s nomination. He withdrew his nomination on Thursday — and the next day, Wynn informed Biden that he had changed his mind about retiring.
Here’s a copy of his letter:
The theme emerging from these judges canceling their retirements is that they’d rather stick it out for another four years on the federal bench and hope to be replaced by a potential Democratic president in 2028 instead of letting Trump replace them with younger, far-right conservatives.
Trump confirmed 234 lifetime federal judges in his first term, a huge number that was thanks largely to then-Senate Majority Leader Mitch McConnell (R-Ky.) taking an aggressive stance on confirming judges. They specifically prioritized confirming appeals court judges, who hold more powerful seats than district court judges. By the end of Trump’s term, nearly 1 in 3 U.S. appeals court judges was a Trump pick, and the majority were white, male, right-wing ideologues.
Senate Republicans are eager to get back to filling more federal court seats under Trump after four years of Biden, who is on track to surpass Trump’s number of confirmed judges. Some are furious to see sitting judges changing their minds about retirement.
“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,” Sen. Thom Tillis (R-N.C.) fumed in a Saturday statement.
The North Carolina Republican had previously opposed Park’s nomination to Wynn’s seat, and then when Park withdrew from consideration, Tillis warned Wynn not to change his mind about retiring because now Trump should get to replace him. Welp.
“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,” said Tillis. “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.”
McConnell has complained about the two district judges canceling their retirements.
“Looking to history, only two judges have ever ‘un-retired’ after a presidential election ― one Democrat in 2004, and one Republican in 2009,” McConnell said on the Senate floor in early December.
“But now, in just a matter of weeks, Democrats have already met that all-time record,” he said. “It’s hard to conclude that this is anything other than open partisanship.”
It’s not clear if a judge’s decision to cancel retirement plans violates any ethics rules.
Senate Republicans’ complaints of partisanship in the judicial nomination process gloss over how brazenly partisan they were when it came to pushing through Trump’s court picks. In addition to changing Senate rules to make it easier to confirm more of his judicial nominees, McConnell led the GOP in an unprecedented decision to deny a Supreme Court seat to Obama’s pick in 2016, and then deny Biden the chance to fill another Supreme Court in late 2020.
“You can’t win ’em all,” McConnell said as the Senate confirmed Justice Amy Coney Barrett in 2020. “Elections have consequences.”
Democracy In The Balance
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As of Monday, Biden has confirmed 233 lifetime federal judges. Democrats still control the Senate and are expected to use the final weeks of the year to confirm as many of his six remaining district court nominees as they can. If they confirm all six, Biden will leave office with a total of 239 lifetime federal judges — five more than Trump got in his first term.