On Friday, Fourth Circuit judge James Wynn sent President Biden a letter in which he stated that he has “decided to continue in regular active service” and was thus retracting his decision in January 2024 to take senior status on the confirmation of his successor. Wynn obviously made his decision to prevent President-elect Trump from appointing his successor. Senator Thom Tillis of North Carolina, where Wynn’s chambers is located, blasted Wynn’s “brazenly partisan decision to rescind his retirement.”
Wynn joins two federal district judges—Max Cogburn (Western District of North Carolina) and Algenon Marbley—in withdrawing their retirement decisions in response to Trump’s election. Sixth Circuit judge Jane Branstetter Stranch is a leading suspect to join them.
Some questions and answers:
1. Can Wynn do what he did? Do judges have the power to withdraw decisions to retire in the future?
My own take is that it all depends what the judge said in his initial retirement decision. As I wrote in this Confirmation Tales post in which I speculated about Justice O’Connor’s possible decision to revoke her retirement in 2005:
One essential component of a judicial resignation is a judge’s expression of a firm decision to resign. Wording matters. “I hereby resign (or retire from) my judicial position effective on my 65th birthday” qualifies. So does “I am writing to inform you that I have decided to resign my judicial position effective immediately.” By contrast, “I intend to resign my judicial position at the end of November” is a mere statement of intent to take a future action that effectuates the resignation.
I haven’t seen Wynn’s January 2024 letter. If (as is very likely) he stated something like “I intend to take senior status on the confirmation of my successor,” then I think that he would have the power to withdraw that. If he instead stated, “I hereby elect to take senior status on the confirmation of my successor,” then I think that there is a strong argument that his decision was irrevocable.
2. Is it good form to do what Wynn did?
I sure don’t think so. I agree with Senator Tillis that Wynn’s decision certainly appears to be “brazenly partisan.” It might therefore also violate Canon 1 of the Code of Conduct for United States Judges, which states that a judge “should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
Many folks on Wynn’s side of the partisan divide will welcome his decision, but I invite them to reflect whether they actually think it was proper. Yes, many folks on both sides would flip reactions if the ideological polarities were reversed—e.g., conservative judge revoking retirement just before liberal president takes office—but that fact doesn’t address the question of principle.
We all understand that many or most judges make their retirement decisions with an eye to which president will be filling their seats. That strikes me as inevitable and unobjectionable. But once a judge makes a retirement decision, he should stick with it—or, at the very least, he shouldn’t undo it because his bet on who would be replacing him didn’t work out. (The situation might well be different if, say, a judge opts for senior status, upon confirmation of his successor, because of a sharp downturn in health and then experiences a dramatic recovery before his successor is confirmed.)
3. Why care?
It’s a bad thing for judges to act in a brazenly partisan manner. In addition, if it becomes acceptable for a judge to withdraw a decision to retire in the future, that judge can exert undue influence on the selection of his successor. In practice, a decision to “retire on the confirmation of my successor” could become a decision to “retire on the confirmation of a successor who is acceptable to me.”
4. What can be done?
I have a simple solution going forward. The Senate should adopt a resolution in which it states that it will not take any action on a nomination for a future judicial vacancy unless the judge vacating the office has irrevocably committed to doing so. I’m not going to try to wordsmith the resolution here, but it could dictate the precise language that a judge must use if he wants the president to be able to fill his seat. (E.g., “I hereby make the irrevocable decision to elect senior status [or retire] upon the confirmation of my successor [on X date].”
There ought to be broad bipartisan support for such a resolution.