Judges Who Rescind Their Senior Status Announcement Because They Don't Like Their Replacements

Judges Kanne (CA7) and King (CA4) have started a new trend.

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During the Biden and Trump administrations, at least two judges have rescinded their senior status announcements, apparently because they did not like their proposed replacements.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."

Comments

[Moderation4ever]

This strikes me as another good reason for term limits for Federal judges.

[Flight-ER-Doc]

No take-backsies?

More reasonably the idea that a judge cannot be forced to retire is wrong. Pay them to satisfy the Constitutional requirement, but don't allow them to work. Since Congress establishes the courts and the rules they operate under (Article III section 2)

[Krayt]

Adhere to the letter but not the spirit?

[Michael P]

How do you square such behavior with the letter, and spirit, that gives the President the power to appoint Article III judges worth the advice and consent of the Senate? There's no reference to the wishes of the judicial predecessor in that process.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

There's no prohibition on the President seeking other advice either, whether from a Ouija board or Aunt Jemima's fifth cousin.

[Michael P]

Sure, but that avoids the real question. Is there a vacancy once the judge announces they will take senior status? If not, how can a replacement be appointed? If so, why can the incumbent inject himself or herself as a roadblock?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I got the impression the judges announced they would take senior status when a replacement was announced, then rescinded that. There is nothing forcing them to take senior status, and there is nothing requiring the President or Senate to proceed on a mere announcement. If I were President, I'd tell them to put up or shut up.

[Brett Bellmore]

" The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."

You can't cut their pay, sure, but neither can you fire them. You really think the Supreme court is going to agree that they're still holding their offices if they're not allowed to work?

[Flight-ER-Doc]

Article III, section 2 says that Congress makes the rules the USSC, and subordinate federal courts, operates under.

Time for Congress to do their damned job.

[Brett Bellmore]

Congress makes the rules, but its power to make them isn't totally unlimited. They can't fire judges, and declaring that a judge can no longer do his job is constructively firing him.

[Flight-ER-Doc]

There must be a way to get rid of deadwood, short of waiting for their eventual demise.

Since Congress has to pay them, and let them keep their title, the way would seem to be in how cases are assigned - and have a system designed that doesn't assign them any. Further, don't senior judges get to decide if they take cases or not? Refusing to hear a case would seem to be a reason for discharge (bad behavior).

Besides the backlog in federal cases, it should be a while before that happens.

[Rossami]

re: "There must be a way to get rid of deadwood"

There is - impeachment. And that process is slow, hard and designed to be ... Well, I can't say 'free from political influence' but certainly the behavior needs to be bad enough that the desire to fire is broadly held.

[phoqueue]

Congress could probably put them all on duty as in-house discovery masters, though.

[MatthewSlyfield]

Is there any problem with moving judges around?

Set up district and circuit courts for the US Antarctica mission and move judges who pull this there.

[Miles Fortis]

"Is there any problem with moving judges around?"

It's reasonable to think that it's likely the courts, up to and including SCOTUS, would find that :
The Judges, both of the supreme and inferior Courts, shall hold their Offices..... means the office to which they were appointed, as in the specific post they were appointed and confirmed to.

[ReaderY]

Not everything in the constitution is correct policy or right for today. But nonetheless, constitutional legitimacy means if something is specifically covered in the constitution, you have to do what it says and the only option to do differently is amendment.

So the constitution’s prohibition on Congress’ removing judges “during their good behavior” may be a bad idea, it may be bad policy, but it needs to be followed unless and until changed.

[PeteRR]

Wasn't it Fortnum v. Mason that established No Backsies?

[bernard11]

No. Spahn v. Marichal.

[Flight-ER-Doc]

Bad decisions can always be re-decided.

[TwelveInchPianist]

I suppose the status of those judges who were confirmed when there was no vacancy would be subject to challenge.

[Lee Moore]

But that's quite a common occurence, and no one seems to be worried by it. Presumably the text of whatever Act currently establishes judicial slots is consistent with the President and Congress jumping the gun on the nomination and consent process. Though it would be interesting to know precisely how the appointment bit works - I imagine the old judge does actually have to take senior status unconditionally before the new judge is formally appointed.

[Flight-ER-Doc]

What would happen if a new judge was appointed and sworn in, and then the 'senior' judge decided to retain his seat?

[Krychek_2]

William Douglas tried that when he retired, then attempted to un-retire, from the Supreme Court. His colleagues as a group told him he was off the court.

[John F. Carr]

I believe the sequence is

1. Employee announces departure conditional on confirmation of successor.
2. Senate confirms successor.
3. Employee leaves post.
4. President formally appoints successor.

I don't know if step 3 is automatic or involves a second act by the departing employee.

[Michael P]

Your step 4 does not actually exist: https://share.america.gov/how-does-senate-confirmation-work/ . There's also a step missing between 1 and 2, where the President nominates a successor.

The difference between step 1 and step 3 is critical.

[Lee Moore]

I suspect you are being misled by the fact that your link is telling us how Senate confirmation works, not how judges get appointed. The former is just part of the process to achieve the latter.

Since Article 2 expressly provides for nomination, Senate consent and appointment it seems likely that all three have to happen.

Marbury v Madison hints that a while back there were commissions that got handed out (or not handed out as the case may be), but that seems to have been post the official appointment by the President.

I don't know what the process is these days, but I'm fairly confident that the appointment stage can't be skipped.

[Toranth]

So these judges took official actions because specific people they preferred were not offered the jobs?
Quid pro quo, anyone?

[ReaderY]

It’s not clear he took any official action. The link refers to an announcement of an intent to resign, not a formal resignation letter.

Announcements about ones personal plans aren’t official actions of any kind, and Judge King would be within his rights to change his mind about his personal plans whenever he wants and for whatever reason.

If he tendered a formal resignation letter, however, then I doubt a recision would be valid, and I suspect Biden might be free to simply ignore it.

[Toranth]

That's certainly better, but it still strikes me as rather close to straight up bribery.

"I'll resign if you appoint my friend/coworker/whatever to this job" followed by "You aren't doing me the favor? Then I'm not resigning".

If it was a non-political situation, like in the normal corporate world, it would almost certainly get people fired (if found out, if course).

[Kazinski]

Courts, including the supreme court have been clear that that kind of logrolling is not criminal, and definitely not bribery.

Without money, or other property, changing hands in a quid pro quo then it's perfectly legal.

Whatever vicarious pleasure a judge derives from seeing a affectionately regarded clerk assume his office, it's not something he can take down to the bank and deposit, or sell on ebay.

Although I suppose he could commemorate it with a highly salable NFT.

[Toranth]

What? It can most certainly be illegal without money or property changing hands.
"Hire my wife, and I'll hire your cousin" would be a problem in the commercial world. "You hire my kid, I'll approve your request" is certainly illegal for anyone in government, as would a judge's "Hire my friend, and I'll get you off". No money or property changed hands in any cases.

Political horse-trading has been deemed acceptable, but that's certainly not what is going on here.

[Rev. Arthur L. Kirkland]

" The Goodwins are something of a legal and political dynasty in West Virginia "

Small fish in an even smaller, fouled pond.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Interesting that in both cases, the sitting judge was offended because his brand of nepotism wasn't honored. Doesn't say much for their ethics, even apart from taking backsies.

[John F. Carr]

Reading about this on a blog it is hard to distinguish politics, connections, and qualification as the reason the old judge doesn't like the proposed replacement.

[bernard11]

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.

Have you ever heard of Anthony Kennedy?

[Kazinski]

Or Sandra Day O'Connor, or Byron White, or David Souter, or John Paul Stevens.

They all seemed to choose to retire when a president they were more idealogically comparable with could pick their successor.

[ReaderY]

If Judge King’s resignation letter did not explicitly reserve a right of future revocation and did not explicitly include any conditions other than the confirmation of his successsor, President Biden and the Senate might be well within their rights to simply ignore the purported recission, proceed with the confirmation, install the new judge in the duly created vacancy, and, if necessary, move Senior Judge King’s things out of offices reserved for active judges and change the padlocks on the doors.

[ReaderY]

However, if he simply announced an “intent” to take senior status and never formally resigned, he’s probably within his rights.

[David Nieporent]

But it really does illustrate why conditional resignation can't be a thing. Either the guy's off the court, and can't take it back — or he's not, and there's no vacancy to fill.

Otherwise, why can't Biden nominate, and the Democratic senate confirm, a couple of hundred judges, with said appointments to take effect if and when a vacancy arises?

[Lee Moore]

Otherwise, why can't Biden nominate, and the Democratic senate confirm, a couple of hundred judges, with said appointments to take effect if and when a vacancy arises?

I remember asking that very question, replacing Biden with Trump and Democratic with Republican, way back in the Trump era.

I presume that the answer must lie in the text of the relevant Judiciary Acts that create the judicial slots. Which, if there was a lawyer in the house, he or she could look up.

Sans text, I would guess that a judge occupies a particular designated office, and if there is still someone occupying it, the President has no power under the relevant statute to appoint someone to an office that is already occupied.

But nomination and Senate consent don't involve double stacking a single office, so there's presumably no problem in doing those steps while the office is not vacant. Once it does become vacant, and the appointment of the successor takes place, the fact that the nomination and consent happened before there was a vacancy does not mean that the constitutonally necessary nomination and consent procedure has not been followed.

So, as you suggest the key would seem to be whether there is a vacant office to be filled at the time of appointment, which implies to me that the judge's resignation (or taking of senior status) must have become unconditional before the new judge is appointed.

[Lee Moore]

However, the scheme to stack up potential replacements against a turn of the political wheel might be possible in the following situation.

There are a stack of elderly BigEndian-appointed judges occupying judicial offices on SCOTUS and the Courts of Appeal. So the LittleEndian President and Senate can't replace them. There are also some Little Endian-appointed judges who are clinging to office and declining to resign so that the LittleEndian Presidnt and Senate can replace them with likeminded but younger LittleEndian judges.

So the LittleEndian President nominates and the LittleEndian Senate confirms successor judges for all of these not yet vacant judicial slots, in advance of the next set of Senate elections.

In those Senate elections, the BigEndians win a landside, and gain the Senate majority. Over the next couple of years several of the old judges, for whom successors have been nominated and confirmed, die or retire; and the LittleEndian President appoints the successors without any further reference to the Senate. Causing much gnashing of teeth in the now BigEndian controlled Senate.

I don’t think this would actually work, if the BigEndian Senate had passed votes to withdraw their consent to the appointments of the successors, prior to the appointments.

Article 2 says nothing about the Senate withdrawing consent, but as a matter of text, the appointment must be made “by and with the consent of the Senate” which looks to me like a requirement that the consent be in place at the time of appointment.

Still it would make a fun SCOTUS case.

[ReaderY]

No, I think resignation conditioned on confirming a replacement, or at a future time certain, can be permitted. But once tendered and accepted, it’s irrevocable. The judge can’t back out.

And I would tend to agree, as this situation illustrates, that a mere announcement rather than an irrevocable resignation does not create any vacancy.

[WPHDM]

From novelty to larger than N=1

Interesting stuff, but N=2 hardly makes for a trend.

At least, we might say, the phenomenon is no longer "unprecedented" for the 2nd one in the sequence, since that's such as big no-no (or a big one) for the legal thinkers ... as distinguished from innovation-friendly policywonks.

[Allan L.]

This is not good behavior.

All seriousness aside, there is something unsettling about the concept of apostolic succession to a judgeship, most obnoxiously represented by Beach Week Bart.

If senior judges are attending to the reputation of the courts, they may be doing it wrong.

[ReaderY]

I think that Biden should respond to retirement “announcements” that, while he’s always interested in hearring about government employees and their tentative personal plans, if a federal judge wants to resign conditioned on confirmation of a replacement, he needs to provide an irrevocable resignation letter containing no other condition. And if the judge is not willing to to that, mere tentative future plans don’t create a vacancy that can support initiating the nomination and confirmation process.

[Drewski]

This is actually the procedure mandated by law. 28 USC § 371 (d) says:

"The President shall appoint, by and with the advice and consent of the Senate, a successor to a justice or judge who retires under this section."

So the President doesn't have the power to nominate a successor until a judge retires. I think a nomination after a judge announces retirement (but before leaving the bench) is a fair reading, but there's no way to twist it to authorize a nomination based on blue-sky speculation.

[Lee Moore]

I disagree. There is nothing in the text you quote that restricts the timing of the nomination and consent process to a time after the old judge's retirement. After all, the text doesn't even mention nomination.

All that is required by the text is that when the President appoints the successor :

(a) the old judge must have already retired and
(b) the Senate must already have consented

[Cal Cetín]

What specifically did King and Kanne write about retiring? Did they write and say "I retire from active service effective on the confirmation of my successor"? Or did they say "I *plan* to retire from active service on the confirmation of my successor"?

[Cal Cetín]

If the latter, Biden could say, "OK, I'll nominate your successor *after* you make your formal resignation."

[Cal Cetín]

If the former, Biden could get a successor confirmed, then give the old judges gold watches and kick them out of their offices.

[TW]

I think the solution in situations like this is for the President to say, “we will begin the process of finding a replacement after you’ve formally announced that you are going to retire (or taken senior status) but unless and until that happens, you’re still on active duty and will have a full docket of cases.”

[Peter]

It's not like there weren't warnings that we would not like the new rules.