By Nate Raymond
(Reuters) – A U.S. appeals court judge has taken the rare step of revoking his decision to retire from active service on the bench, depriving Republican President-elect Donald Trump of the ability 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, disclosed his decision in a letter to Democratic President Joe Biden on Friday.
It marked the first time since Trump won the Nov. 5 election that a Democratic-appointed appellate judge had rescinded plans to take senior status, a form of semi-retirement for judges that creates vacancies presidents can fill.
Two trial court judges had similarly done so, prompting complaints by conservatives including Senate Republican Leader Mitch McConnell, who railed about an “unprecedented” spate of judges un-retiring post-election.
Republican Senator Thom Tillis, who had fought to prevent Biden’s pick to fill Wynn’s seat from winning Senate confirmation, said on X that Wynn had engaged in a “blatant attempt to turn the judicial retirement system into a partisan game.”
Wynn sent his letter a day after Biden’s nominee to succeed him, North Carolina Solicitor General Ryan Park, formally withdrew from consideration after his path to win Senate confirmation vanished.
Senate Democrats and Republicans post-election cut a deal that cleared the way for votes on about a dozen of Biden’s remaining trial court nominees in exchange for not pushing forward with four appellate court nominees, including Park.
A spokesperson for Democratic Senate Majority Leader Chuck Schumer has said all four lacked sufficient votes to be confirmed.
That left four seats without confirmed nominees that Trump could try to fill upon taking office on Jan. 20. But two vacancies were contingent on two Democrat-appointed judges following through on their plans to leave active service.
Those judges included Wynn, 70, who in January announced plans to take senior status contingent on a successor being confirmed. On Friday, he told Biden he changed his mind.
“I apologize for any inconvenience I may have caused,” Wynn wrote.
The Article III Project, a group run by Trump ally Mike Davis, late Friday announced it had meanwhile filed judicial misconduct complaints against the two trial court judges who likewise rescinded retirement plans post-election.
Those 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)
