Judges reversing their retirement plans is rare, but when it happens in the context of a presidential election, it takes on the appearance of political gamesmanship.
Senate Minority Leader Mitch McConnell (R-KY) isn’t pulling any punches in criticizing two district court judges who decided to “unretire” after President-elect Donald Trump’s victory in November.
Ohio U.S. District Court Judge Algenon Marbley and North Carolina U.S. District Judge Max Cogburn had previously announced they would take senior status, which would allow for their seats to be filled by new nominees. But following Trump’s re-election, both judges reversed their decisions, opting to stay on the bench.
McConnell has labeled these moves as blatant partisanship. “Looking to history, only two judges have ever unretired after a presidential election. One Democrat in 2004 and one Republican in 2009,” McConnell said on the Senate floor. “But now, in just a matter of weeks, Democrats have already met that all-time record.”
His frustration isn’t just about the optics. These decisions deny Trump the opportunity to appoint judges to those seats, effectively keeping Democratic appointees in place. McConnell urged the incoming Trump administration to “explore all available recusal options with these judges,” suggesting that their actions undermine judicial impartiality.
While district court vacancies are significant, McConnell’s real concern lies with the appellate courts. Senate Republicans and Democrats recently struck a rare bipartisan deal allowing Trump to appoint four circuit court judges in exchange for expediting the confirmation of 11 district court nominees.
Circuit courts are a critical battleground. They serve as the final authority for the vast majority of federal cases and are often seen as stepping stones to the Supreme Court. McConnell warned against any circuit judges following Marbley and Cogburn’s lead.
“Never before has a circuit judge unretired after a presidential election,” McConnell said, calling such a move “literally unprecedented.” He made it clear that a similar reversal at the circuit level would shatter the fragile compromise between Senate Republicans and Democrats.
If circuit court judges were to backtrack on their retirement announcements, it could torpedo the bipartisan agreement and ignite a new level of partisan warfare. Senate Democrats have already conceded ground by agreeing to the deal, which many saw as a win for Trump. Adding last-minute twists could blow up what McConnell described as “a rare bipartisan compromise.”
