On the left is U.S. District Judge Max Cogburn Jr., and on the right is President-elect Donald Trump at a House GOP conference in Washington on November 13, 2024.
A federal judge in North Carolina who was appointed to the bench by former president Barack Obama has rescinded his decision to take “senior status,” making him the second Democratic appointee to pull a reverse retirement on Donald Trump before the president-elect can take office and select their replacements.
U.S. District Judge Max Cogburn Jr. of the Western District of North Carolina was quietly removed from the federal judiciary’s list of future vacancies late last month, according to Reuters, just weeks after U.S. District Judge Algenon Marbley of the Southern District of Ohio, a Bill Clinton appointee, announced that he would be remaining active after officially rescinding a “senior status” bid he made in October 2023 to semi-retire.
President Joe Biden never nominated anyone to replace Cogburn, 73, after his “senior status” announcement in 2022 — nor did he confirm a successor for Marbley, who unretired on Nov. 8 — on account of there being a split in support from their respective state’s senators. Per the Senate’s “blue slip” policy, home-state senators have the ability to support or oppose presidential nominees.
For Marbley, it was Republican Vice President-elect J.D. Vance, Ohio’s Republican senator, and Sen. Sherrod Brown, D-Ohio, who would have needed to each confirm Biden’s nominee. In North Carolina, Biden would’ve had to try and get his pick past two Republicans: Sen. Ted Budd and Sen. Thom Tillis.
“Democrats don’t have the votes to confirm these [circuit] nominees and both seats are in red states with two Republican senators,” George Washington University law professor John P. Collins told Reuters last week after Cogburn was removed from the judiciary’s list of vacancies. “So even if blue slips came back, you’d get a far right replacement.”
Cogburn, who was nominated and confirmed in 2011 to a seat vacated by Lacy H. Thornburg, was one of eight remaining district and appellate judges who can rescind their senior status, according to Reuters. The others include Judge Jane Stranch of the U.S. Court of Appeals for the Sixth Circuit and James Wynn of the Fourth Circuit — both Obama appointees. Biden has selected successors for both of them, but there is now a reported deal that’s been reached where senators on both sides of the aisle have agreed to let Trump personally pick the four pending appellate vacancies in exchange for votes on district court selections made by Biden.
Reuters reported that before the deal, Tillis had secured enough support from Democrats to block Biden’s nomination for Wynn’s seat, North Carolina Solicitor General Ryan Park, which led to him publicly asking Wynn to not rescind his senior status, saying he would be “playing partisan politics,” according to Reuters.
The Senate’s top Republican, Minority Leader Mitch McConnell, R-Ky., went after Cogburn and Marbley this week — calling them “partisan Democrat district judges” in floor remarks on Monday — for what he blasted as “open partisanship.”
“As I have repeatedly warned the judiciary in other matters, if you play political games, expect political prizes,” McConnell said, urging the remaining judges to retire. “So let’s hope these judges do the right thing and enjoy their well-earned retirements. Leave the politics to the political branches, where we just demonstrated that even on an issue as contentious as judicial nominations, both sides can still come together for a good deal.”
As of Tuesday, the federal judiciary lists 42 judicial seats as currently being vacant, with 12 nominees “pending.” Democrats are racing to confirm as many judges and regulators as possible before Trump takes office on Jan. 20 as they currently hold a narrow 51-49 majority in the chamber. That all changes next month as Republicans managed to take back control with the 2024 election — gaining a 53-47 majority — following GOP flips in West Virginia, Montana and Ohio.
“We are going to get as many done as we can,” Democratic Senate Majority Leader Chuck Schumer said in a statement last month about the confirmations as Republican and Democratic leaders flocked to Washington to take part in the Senate chamber’s lame-duck session.
McConnell, who famously led the Republican blockade against then-President Obama’s 2016 effort to put Merrick Garland on the Supreme Court, warned that judges who rescind their senior status for political reasons will be punished, saying: “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.”
