Mitch McConnell, the Senate Minority leader (R-Ky. ), expressed his disappointment Monday when two federal judges appointed by Democrats reversed their decision to retire. This appeared to be an attempt to prevent President-elect Trump from nominating their replacements.
McConnell said that the unusual decision to not retire following Trump’s victory was a “partisan gambit” that would undermine the integrity and independence of federal courts.
McConnell stated on the Senate floor that “they rolled the dice” that a Democrat would replace them. Now that he hasn’t done so, they are changing their plans in order to prevent a Republican from doing so.
“It’s a brazen admission, and 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,” he said.
This type of partisan behavior undermines integrity in the judiciary. McConnell warned that it exposes the bold Democratic blue where only black robes should be.
Max Cogburn is a former President Obama appointee who serves on the Western District of North Carolina court. He has decided to stay in active service, despite having announced in 2022 that part-time senior status would be his new role.
This change of plan came after U.S. District Judge Algenon Marbley – a judge from the Southern District of Ohio – reversed his intentions to take seniority on the court following Trump’s victory in the presidential election. Marbley was appointed by former President Clinton to the bench.
McConnell said, “It is hard to believe this is not open partisanship.”
He said that it could undermine an agreement struck between Senate Democrats, Republicans, and Trump before Thanksgiving to confirm approximately a dozen district court judges in exchange for Trump receiving four additional circuit court seats to be filled.
He warned it would be a problem if the two circuit court judges from Tennessee and North Carolina whose seats had been included in that Senate deal were also to reverse their decision to retire.
McConnell stated that it would be “particularly alarming” if the two circuit court judges who announced their retirements and created the vacancies now pending in the Senate — Tennessee and North Carolina — followed suit.
Never before has a Circuit Judge resigned after a Presidential election. This is unprecedented. “To create such a precedent is to go against a rare bipartisan agreement on how these vacancies should be filled,” he said.
He said that if judges of the circuit courts decide to remain on the bench during Trump’s tenure, they will likely be hit with complaints about ethics.
“If these judges unretire, because they do not like the results of the election, then I can only assume that they will be facing significant ethics complaints under Canons 2 and 5. of the Code of Conduct of U.S. The Department of Justice will then demand that judges recuse themselves from certain cases. He warned that they would have earned their punishment.
Senate Judiciary Committee chair Dick Durbin (D.Ill.), speaking on the floor following McConnell reminded colleagues of McConnell’s controversial decision, which prevented then-Judge Merrick Garrland, who Obama had nominated for a Supreme Court seat in 2016, from getting even a hearing, while Republicans controlled Senate.
I’m not sure, but I can tell when I hear the Kentucky senator speak on the floor and ask if any gamesmanship is going on. Durbin responded, “We saw it on the highest level when filling the vacancy at the Supreme Court after Antonin Scalia’s death.”
The Senate Republicans left Scalia’s vacant seat for almost a year. This gave Trump the chance to nominate conservative judge Neil Gorsuch in 2017 to fill it.
