Senate Minority Leader Mitch McConnell (R-Ky.) vented his displeasure Monday after two Democratic-appointed federal judges reversed their decisions to retire in what appear to be efforts to stop President-elect Trump from nominating their successors.
McConnell called the unusual decisions to forgo retirement following Trump’s sweeping victory last month a “partisan” gambit that would undermine the integrity of federal courts.
“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 said on the Senate floor.
“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 sort of partisan behavior undermines the integrity of the judiciary. It exposes bold Democratic blue where there should only be black robes,” McConnell warned.
U.S. District Judge Max Cogburn, an appointee of former President Obama who sits on the court for the Western District of North Carolina, decided to remain in active service despite announcing in 2022 that he would assume part-time senior status.
Cogburn’s change of plans came after U.S. District Judge Algenon Marbley, a judge for the Southern District of Ohio, reversed his intention to take senior status on the court after Trump won the presidential election last month. Marbley was appointed to the bench by former President Clinton.
“It’s hard to conclude this is anything other than open partisanship,” McConnell declared.
McConnell said the decisions threatened to undermine a deal struck before Thanksgiving between Senate Democrats and Republicans to confirm about a dozen district judges in exchange for Trump getting four more circuit-court seats to fill.
He warned it would be a serious problem if two circuit court judges in Tennessee and North Carolina, whose seats were part of that Senate deal, were to also reverse their decisions to retire.
“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 said.
“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,” he argued.
He said if the circuit-court judges decide to stay on the bench through Trump’s term, they would likely get hit with ethics complaints.
“If these circuit judges unretire because they don’t like who won the election, I can only assume they will face significant 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.
Senate Judiciary Committee Chair Dick Durbin (D-Ill.), who spoke on the floor after McConnell, countered by reminding colleagues of McConnell’s decision to block then-Judge Merrick Garland, whom Obama had nominated to serve on the Supreme Court in 2016, from even getting a hearing while Republicans controlled the Senate.
“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 retorted.
Senate Republicans kept Scalia’s seat vacant for nearly a year, which gave Trump the opportunity to nominate conservative Judge Neil Gorsuch to fill it in 2017.
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