McConnell Blasts Judges Who Reversed Retirement Post-Trump Win

The Senate’s top Republican criticized two federal judges for walking back their plans to retire from active status, preventing Donald Trump from filling their seats when he returns to the White House.

Minority Leader Mitch McConnell (R-Ky.) admonished the two trial court appointees in floor remarks on Monday as “partisan Democrat district judges” for reversing their plans “after the American people voted to fire Democrats"in last month’s election.

McConnell didn’t name the judges. But US District Judge Algenon Marbley notified President Joe Biden of his plans to remain an active judge on the Southern District of Ohio just days after Trump won reelection. And US District Judge Max Cogburn’s seat on the Western District of North Carolina is no longer listed as a future vacancy on the federal judiciary’s official site. Marbley is a Bill Clinton appointee and Cogburn was appointed by Barack Obama.

Both Marbley and Cogburn made public their intent to take senior status, a form of semi-retirement, upon confirmation of successors to their respective seats. Biden never nominated replacements.

Marbley’s potential successor in Ohio would’ve needed approval from a split Senate delegation. And negotiations to fill judicial posts in North Carolina soured between the White House and the state’s two Republican senators, Ted Budd and Thom Tillis. Senate tradition requires that district court nominees get home-state senator support to advance.

McConnell said that it’s “hard to conclude” that the judges’ decisions are “anything more than open partisanship."He later added that “the incoming administration would be wise to explore all available recusal options with these judges, because it’s clear now that they have a political finger on the scale.”

In response to McConnell’s remarks, Judiciary Committee Chair Dick Durbin (D-Ill.) referenced the Senate GOP move to block Merrick Garland’s nomination to the Supreme Court in the last year of Obama’s presidency. Trump later appointed Neil Gorsuch.

“So when I hear the senator come to the floor—from Kentucky—and talk about whether there’s any gamesmanship going on—I don’t know. But I can tell you we saw it at the highest possible level filling the vacancy on the Supreme Court when Antonin Scalia passed away,” Durbin said on the floor.

Circuit Vacancies

McConnell also alluded to appellate judges whose Biden-tapped replacements will no longer get floor votes before the Democratic-led Senate relinquishes its majority to Republicans on Jan. 3.

Senate Democrats agreed before Thanksgiving to not to move forward with four circuit nominees if Biden’s remaining district choices could advance without Republican stalling tactics. McConnell’s office confirmed the appellate picks didn’t have enough support in the narrowly divided chamber.

Two of the sidelined nominees would’ve replaced James Wynn of the US Court of Appeals for the Fourth Circuit and Jane Branstetter Stranch of the Sixth Circuit. The judges could still walk back their plans to semi-retire, since their vacancies are contingent on the confirmation of successors.

“It would be essentially alarming if either of the circuit judges whose announced retirements created these vacancies currently pending before the Senate in Tennessee and in North Carolina were to actually follow suit. Never. Never before has a circuit judge ‘unretired’ after a presidential election. It’s literally unprecedented,” McConnell said.

He suggested they’d face “significant ethics complaints” followed by “serial recusal demands” from the Justice Department if they stayed on.

Trump is poised to inherit less than half the vacancies he started with at the beginning of his first term, and as Democrats have moved to fill as many of those openings as possible in the post-election lame duck session.