Criticism from leading Republicans erupted over recent decisions deemed as blatant partisanship, particularly regarding the “unretirements.” Senate Republican Leader Mitch McConnell (Ky.) stated that the actions of judges Cogburn and Marbley in delaying their senior status revealed “bold Democratic blue where there should only be black robes.”
Additionally, Senator Thom Tillis (R-N.C.) indicated that ethics complaints and calls for recusal against Wynn were warranted. Judicial misconduct complaints have been filed against all three judges by the conservative Article III Project, an organization founded by Trump ally Mike Davis.
Mitch McConnell calls out judges for partisan decisions despite rising tensions in the Senate
Nonetheless, legal experts assert that strategic retirements, influenced by the political party in control of the White House rather than purely nonpartisan factors, have become increasingly prevalent in recent years.
According to John P. Collins, a law professor at George Washington University specializing in judicial nominations, various personal factors contribute to a judge’s decision to retire. He noted, “As data shows, particularly in recent times, the party of the president who will appoint a replacement is a consideration.”
A 2023 analysis in the Minnesota Law Review revealed that judges are opting for senior status at politically favorable moments more frequently. The study highlighted that under former President George W. Bush, over 70 percent of federal judges seeking senior status were appointed by a Republican president, a figure that rose to more than 80 percent during Trump’s presidency.
In the initial two years of Biden’s term, approximately 65 percent of judges taking senior status were appointed by a Democratic president. Moreover, at least three judges appointed by Republicans have reversed their decisions to assume senior status in the past two decades.
Cases include U.S. District Judges Rudolph Randa, who changed his mind following Obama’s 2008 election; Michael Kanne, who did so when Trump did not choose his preferred successor; and Karen Caldwell, who withdrew after her chosen successor fell through.
According to Christina Boyd, a law professor at Washington University in St. Louis focused on judicial behavior, the interplay of pensions and politics heavily influences these choices. She explained, “Judges often wait until their pension vests and also take into account the political climate surrounding them.”
Various think tanks and advocacy groups, from judicial watchdog Fix the Court to the libertarian Cato Institute, have criticized the trend of judges attempting to manipulate the succession of their judicial seats. Nevertheless, political influences frequently permeate the process.
Earlier this month, Senate Judiciary Committee Chair Dick Durbin (D-Ill.) pointed out that McConnell obstructed then-Judge Merrick Garland’s nomination to the Supreme Court in 2016, denying him even a hearing while Republicans were in control of the Senate. Instead, they kept Justice Antonin Scalia’s seat vacant for nearly a year after his death in 2016, allowing Trump to nominate Judge Neil Gorsuch in 2017.
The discussion surrounding judicial retirement reached the Supreme Court following Trump’s election, with both parties debating whether the court’s oldest justices should retire before or during the next administration.
Justices Clarence Thomas and Samuel Alito, two prominent conservatives, are currently 76 and 74 years old, respectively, while Justice Sonia Sotomayor, the senior liberal on the court, is 70. “There has always been a political aspect intertwined with the dynamics of judicial retirements,” Collins noted.
