By Nate Raymond
(Reuters) – A U.S. appeals court judge has taken the rare step of reversing his decision to retire from active duty on the bench, depriving newly-elected Republican President Donald Trump of the opportunity to seek a to fill a judicial vacancy.
U.S. Circuit Judge James Wynn, an appointee of Democratic former President Barack Obama on the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals, announced his decision Friday in a letter to Democratic President Joe Biden.
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It was the first time since Trump won the Nov. 5 election that a Democratic-appointed appellate judge had withdrawn plans to take senior status, a form of semi-retirement for judges that creates vacancies that presidents can to fulfill.
Two of the court’s justices had done so as well, prompting complaints from conservatives including Senate Republican Leader Mitch McConnell, who railed about an “unprecedented” wave of justices retiring after the election.
Republican Senator Thom Tillis, who had fought to prevent Biden’s pick to fill Wynn’s seat from receiving Senate confirmation, said on X that Wynn had made a “blatant attempt to turn the judicial pension system into a partisan game.” .
Wynn sent his letter a day after Biden’s nominee to succeed him, North Carolina Attorney General Ryan Park, formally withdrew from consideration after his path to winning Senate confirmation disappeared.
Senate Democrats and Republicans struck a deal after the election that cleared the way for votes on about a dozen of Biden’s remaining court nominees in exchange for not advancing four appellate court nominees, including Park.
A spokesman for Democratic Senate Majority Leader Chuck Schumer said all four did not have enough votes to be confirmed.
That left four seats without confirmed nominees for Trump to try to fill when he takes office on January 20. But two vacancies were contingent on two Democratic-appointed judges carrying out their plans to leave active duty.
Among those judges was Wynn, 70, who in January announced plans to assume senior status, subject to the confirmation of a successor. On Friday, he told Biden he had changed his mind.
“I apologize for any inconvenience I may have caused,” Wynn wrote.
The Article III Project, a group led by Trump ally Mike Davis, announced late Friday that it had filed judicial misconduct complaints against the two court judges who also withdrew their pension plans after the election.
These judges are U.S. District Judge Max Cogburn in North Carolina and U.S. District Judge Algenon Marbley in Ohio. They did not respond to requests for comment.
(Reporting by Nate Raymond in Boston; Editing by Daniel Wallis)
