On Monday, Mitch McConnell, the Senate Minority Leader, expressed his frustration after two federal judges appointed by Democrats decided against retiring, seemingly to prevent President-elect Trump from selecting their successors. He characterized their unexpected decision to remain in their positions following Trump’s decisive victory last month as a “partisan” maneuver that threatens the integrity of the federal judiciary.
“They rolled the dice that a Democrat could replace them, and now that he won’t, they’re changing their plans to keep a Republican from doing it,” McConnell stated on the Senate floor. Calling it a “brazen admission,” McConnell suggested that the incoming administration should consider all available recusal options regarding these judges, noting that their actions appear politically motivated.
Senate Minority Leader decries judges’ actions as a threat to bipartisan judicial deals
“This sort of partisan behavior undermines the integrity of the judiciary. It exposes bold Democratic blue where there should only be black robes,” he cautioned. Judge Max Cogburn, an Obama appointee serving the Western District of North Carolina, announced he would remain in active service, reversing his earlier decision to take part-time senior status made in 2022.
His change followed that of Judge Algenon Marbley, appointed by Bill Clinton, who also opted to remain on the bench instead of transitioning to senior status after Trump’s election win. “It’s hard to conclude this is anything other than open partisanship,” McConnell asserted.
He expressed concern that these decisions could jeopardize an agreement reached before Thanksgiving between Senate Democrats and Republicans, which aimed to confirm approximately a dozen district judges in exchange for Trump obtaining four additional circuit court appointments.
He warned of serious repercussions if two circuit court judges in Tennessee and North Carolina, whose retirement decisions were part of the Senate deal, also chose to remain in their positions. “It would be especially alarming if either of the two circuit judges whose announced retirements created the vacancies currently pending before the Senate — in Tennessee and North Carolina — were to follow suit,” McConnell stated.
He highlighted the unprecedented nature of this situation, arguing, “Never before has a circuit judge unretired after a presidential election. It’s literally unprecedented. And to create such a precedent would fly in the face of a rare bipartisan compromise on the disposition of these vacancies.”
McConnell suggested that if the circuit judges opted to stay through Trump’s term, they could face ethics complaints.
“If these circuit judges unretire because they don’t like who won the election, I can only assume they will face ethics complaints based on Canons 2 and 5 of the Code of Conduct for U.S. Judges, followed by serial recusal demands from the Department of Justice. And they’ll have earned it,” he warned.
In response, Senate Judiciary Committee Chair Dick Durbin (D-Ill.) reminded his colleagues of McConnell’s past actions, particularly his refusal to allow a hearing for then-Judge Merrick Garland, whom Obama nominated for the Supreme Court in 2016.
“When I hear the senator [McConnell] come to the floor … and talk about whether there is any gamesmanship going on, I don’t know. But I can tell you we saw it at the highest possible level in filling the vacancy on the Supreme Court when Antonin Scalia passed away,” Durbin countered.
During that time, Senate Republicans left Scalia’s seat vacant for nearly a year, enabling Trump to nominate conservative Judge Neil Gorsuch in 2017.
Additionally, a Democratic aide pointed out that at least three judges appointed by Republicans have rescinded their retirement decisions in the past 16 years. Judge Rudolph Randa from the Eastern District of Wisconsin withdrew his senior status letter in 2008 after Obama’s election win.
Similarly, Judge Michael Kanne of the 7th Circuit Court of Appeals retracted his senior status letter in 2018 when Trump did not select his preferred successor. Judge Karen Caldwell from the Eastern District of Kentucky also rescinded her senior status in 2023 after her unsuccessful attempt to choose her successor.
