The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Historically, once eligible, judges have taken senior status immediately, or at some date certain in the future. But in recent years, circuit judges have informed the President that they would take senior status upon the confirmation of their successor. I was never entirely sure how judges could make this sort of conditional offer. But one of the upshots from this approach is that judges didn't actually take senior status at the time of the announcement. Rather, they would remain in full, active status until some unknown date in the future. And, presumably, those same judges can have a change of heart, and decide not to formally take senior status. These announcements are not binding promises that can be enforced in any meaningful sense.
During the Biden and Trump administrations, at least two judges have rescinded their senior status announcements, apparently because they did not like their proposed replacements.
David Lat provides the details:
Judge Robert King made waves this week after rescinding his decision to take senior status, which would have given President Joe Biden another seat to fill on the Fourth Circuit. The 81-year-old jurist has served on the court since his appointment in 1998 by President Bill Clinton.
What happened? Professor John Collins, an expert on President Biden's approach to judicial nominations, suggested to Nate Raymond of Reuters that Judge King's decision might have had something to do with an issue regarding his replacement. I have reason to believe this is correct; sources tell me that Judge King was less than thrilled with the White House's pick for his seat.
For quite some time, the frontrunner appeared to be the well-credentialed and well-connected Carte Goodwin, a partner at Frost Brown Todd, where he serves as vice chair of the appellate practice and leads the firm's office in Charleston, West Virginia's capital. A graduate of Emory Law (Order of the Coif), Goodwin previously served as general counsel to then-Governor Joe Manchin (D-W. Va.), who appointed Goodwin to fill the vacancy in the U.S. Senate caused by the passing of Robert C. Byrd. The Goodwins are something of a legal and political dynasty in West Virginia: Carte's uncle is Judge Joseph Goodwin (S.D. W. Va.); Judge Goodwin's son (and Carte's cousin), Booth Goodwin, served as U.S. Attorney from 2010 until 2015; and Booth's wife, Amy Shuler Goodwin, is the current mayor of Charleston.
Oh, and Carte Goodwin also served as a federal law clerk. To none other than… Judge Robert King.
But being a white male Biglaw partner from a dynastic family is not the preferred profile of a judicial nominee in the Biden Administration. The White House instead went with J. Jeaneen Legato, a personal-injury lawyer in Charleston with close ties to West Virginia's powerful senior senator, Joe Manchin.
Legato's selection didn't sit well with Judge King. He's not a Manchin fan, and he didn't love his former clerk being passed over for—and "his" seat being filled by—a nominee he sees as, well, less than distinguished. So he "took back" his going senior.
I suppose Biden could accede to King's demand, and nominate the former clerk. But that cave would give judges a veto power over presidential nominations. I think Biden will have to hold the line to avoid setting a precedent, even if he cannot fill this particular seat.
Judge King is not the first circuit judge to rescind his senior status announcement:
This isn't the first time a circuit judge has rescinded a decision to take senior status after having an issue with a prospective replacement. For example, Judge Michael Kanne of the Seventh Circuit rescinded his retirement after Vice President Mike Pence spiked Judge Kanne's prospective replacement, Tom Fisher—Indiana's solicitor general, and a former Kanne clerk. (I'm not a fan of this trend of judges changing their retirement plans because of issues with their likely successors, and I might have more to say about it later.)
As we speak, Justice Breyer is fending off slings and arrows of outraged progressives, who demand his retirement. But, Breyer resists those calls to avoid painting retirement as a political act. Judges Kanne and King have chosen a different path. They are willing to take senior status, so long as their handpicked successors replace them. But when the President chooses someone else (as is his right), the judges say "never-mind."