Judge Called ‘Political Hack’ for Unretiring After Trump Win (1)

A Senate Republican stopped short of saying he’d pursue an ethics complaint against an appellate judge in his state if he reversed his retirement plans and prevented Donald Trump from filling his seat, and called another judge who recently changed course a “political hack.”

Judiciary Committee member Thom Tillis of North Carolina said Wednesday that he “absolutely would do everything I had to to draw attention to a precedent” Judge James Wynn “would be breaking” by remaining active on the US Court of Appeals for the Fourth Circuit. Wynn’s seat is in Raleigh.

Speaking to reporters, Tillis didn’t echo Senate Minority Leader Mitch McConnell’s recent remarks about potential ethics complaints against federal judges who decide to walk back retirement plans just before Trump returns to the White House with a Republican-led Senate to confirm his picks.

McConnell (R-Ky.) said it was “hard to conclude” that recent decisions by two district judges to rescind their intentions to step aside from active service are “anything more than open partisanship.” He added that “the incoming administration would be wise to explore all available recusal options with these judges.”

McConnell also said Wynn and Sixth Circuit Judge Jane Branstetter Stranch could face “significant ethics complaints” followed by “serial recusal demands” from the Justice Department if they reversed course.

Wynn and Stranch have been under the spotlight since Senate Democrats decided not to give their prospective replacements floor votes before relinquishing the chamber’s majority to Republicans on Jan. 3.

Democrats agreed before Thanksgiving to withhold votes for the Joe Biden-tapped nominees if his remaining district choices could advance without Republican stalling tactics. Majority Leader Chuck Schumer’s (D-N.Y.) office confirmed the appellate picks didn’t have enough support in the narrowly divided chamber.

Wynn and Stranch, both appointed by Barack Obama, can still change their plans to seek senior status, a form of semi-retirement, since their vacancies are contingent on the confirmation of successors. Republican criticism of the two Democratic-appointed district judges who’ve already done so since Trump’s Nov. 5 election extended beyond McConnell.

Tillis admonished one of them from his home state, Max Cogburn, as a “political hack.” He said “you can’t be an umpire of balls and strikes and decide you’re going to retire and then because you didn’t get the appointee you want, not to. That’s politics at its rawest.”

Cogburn sits on the Western District of North Carolina and was appointed by Obama. The other judge who’s staying on is Algenon Marbley of the Southern District of Ohio. He was appointed by Bill Clinton.

Cogburn didn’t immediately respond to a request for comment when contacted through a court representative.

Retirement Politics

Only a few judges have reversed course on their retirement plans after a presidential election in recent history, but none among them circuit judges.

Though the reasoning behind judicial retirement decisions are often not public, research shows one factor that can influence those plans is whether a like-minded president is in office to appoint their successor.

“This idea that a judge making a retirement decision based on who is in the White House is somehow something new, something that only one side does, is just not true,” said John P. Collins, a George Washington University law professor who tracks judicial nominations.

Collins also cited other times in which Republicans urged retirement-eligible GOP-appointed judges to step down under Trump.

McConnell, when he was majority leader, reportedly encouraged judges to retire to make more room for Trump appointees in the waning months of his first term. Liberal groups called it unethical.

And Sen. Lindsey Graham (R-S.C.), when he chaired the Judiciary Committee, called for eligible judges to retire who “want to make sure the judiciary is right-of-center” during Trump’s first term.

Collins added that he didn’t see much of a difference between a judge deciding to strategically retire after Trump’s victory, and a judge deciding not to retire after Trump winning.

“Those are two sides of the same coin if you ask me,” he said.