Federal Judge Rescinds Decision to Take Senior Status

Donald Trump will have at least one less federal district court vacancy to fill.

In October 2023, Judge Algenon Marbley of the Southern District of Ohio announced his intention to assume senior status upon the confirmation of his successor. The White House never nominated someone to fill Marbley's seat, however. Senators Sherrod Brown and J.D. Vance could not agree on a suitable replacement, so no pick was named.

Last week, Judge Marbley informed the White House of a change of plans. Judge Marbley no longer intends to take senior status, presumably because he does not want Donald Trump to nominate his replacement.

Judge Marbley's decision means that Trump will have one less federal judicial vacancy to fill -- and there are likely to be fewer judicial vacancies in the next four years than there were over the past four years or during Trump's first term.

Will Judge Marbley be the only judge to rescind a previously announced intention to go senior? We will see. According to the Administrative Office of the U.S. Courts, there are eight additional federal judges who have announced an intention to go senior and retire, but for which no potential replacement has been nominated. Some have identified a date certain upon which they expect to leave active service, others have not. There are an additional eleven judges who have announced an intent to leave active service for which the Biden White House has nominated a replacement.

In 1968 Chief Justice Earl Warren announced his intention to retire upon the confirmation of his successor, thinking that President Johnson would name his replacement, but it was not to be. The Senate refused to elevate Associate Justice Abe Fortas to Chief Justice, and so Homer Thornberry was not confirmed to the Court before the election. There is little doubt Chief Justice Warren was displeased that newly elected President Richard Nixon would name his successor, but he apparently thought it would be inappropriate to rescind his retirement announcement due to election results, lest his decisions appear too political. This gave Nixon the opportunity to appoint Warren Burger as Chief Justice, and the rest is history.

Comments

[Sisu]

There are solid arguments that the Supreme Court “merely” need assert its Constitutional authority; “bad Behaviour” results in bad decision, and unnecessary work for appellate courts and the Supreme Court. To terminate inferior court judges found to have consistently, deliberately practiced “bad Behaviour” is a fundamental function of the judicial authority vested in the Supreme Court pursuant to Article III.
Separately, as others have noted over past decades, inferior court judges who refuse to retire / resign despite suffering permanent disabilities including cognitive impairment should also be removed via the above process.
Last it is possible instituting a judicial process such as the above would result in Congress attempting to appoint truly qualified persons to the inferior courts.
As to the Supreme Court itself, the President and Senate should be diligent as to how they identify and screen candidates. As well, unreasoned, sophistic or political decisions issued by the Supreme Court should be challenged by well-reasoned arguments developed by the inferior courts; nothing in the above prevents the inferior courts from fulfilling that very important role.
P.S. Much of the above has been researched and developed over a century or more by others.

[Brett Bellmore]

The fact that the Constitution identifies a process for removing judges, (Impeachment) and allocates it to the Congress, weighs heavily against the notion that there's another implied process that the judiciary itself could carry out. So, no, the arguments aren't particularly solid.

[bernard11]

Senators Sherrod Brown and J.D. Vance could not agree on a suitable replacement,

Now there's a surprise, but why does Biden wait to get Vance's buy-in? Is Trump going to follow this practice?

[Noscitur a sociis]

The Senate has long had a tradition that they will not confirm a district court judge unless both of the senators from that state agree with the nomination. (Or, if you look at it slightly differently, that any senator can veto a nomination to a district court in their state.) Democratic leadership throughout this adminstration, including both Sens. Schumer and Durbin, have been adamant that they support continuing this rule.

But sure, go ahead and trash it. Can't see that backfiring over the next four years!

[SimonP]

And we see where it's gotten us, haven't we? The practice has created judicial mini-fiefdoms, like in the Fifth Circuit.

In any event, I doubt that aggressive action in the remaining weeks of the Biden administration will do much either way to forestall the GOP's abandonment of blue slips, when it comes to imposing judges on blue states under Trump. The Senate leadership race seems to be hinging on just how dramatically to capitulate to Trump's whims. A body that will recess itself so that Trump can populate the Cabinet without any meaningful scrutiny is not a body that will respect Democratic blue slips.

[Lee Moore]

I agree. Not with the TDS hissy fit, but the judicial mini-fiefdom thing.

A less polite way of putting it is that it is a system open to, and let's be honest, intentionally open to, political corruption. If you're in a solid Red or a solid Blue State, you can't advance into the state judiciary unless you're loyal to the party. Because the Governor and Legislature won't propose you otherwise.

And under this convention for federal appointments, the same applies. Show yourself to be a friend to the party's Senators, or else.

Without this convention, because the federal appointment power chops and changes between parties, you'd get a much more diverse sprinkling in each circuit.

Horrible corrupt convention. Nuke from orbit.

[Dan Schiavetta]

It was already trashed during the Clinton Administration by Republican Senators. It was called "blue slip" and the Bob Dole-led Senate ended that tradition.

[F.D. Wolf]

The reference is to the Senate tradition of the "blue slip", whereby the Senate will not proceed on a judicial nomination if one of the senators from the nominee's home state (Ohio, in this case) objects to the nominee. It is not up to Trump, or any president, to "follow this practice" or not, but to the Senate.

[F.D. Wolf]

As I started reading this post, I immediately thought of Chief Justice Warren and the circumstances of his retirement. Earl Warren, who was notorious for holding on to grudges, hated Richard Nixon as much as any man has hated another. Their feud dated to the 1940s in California, when Warren was the governor and Nixon was a congressman. Warren was particularly incensed when, before the 1952 GOP Convention, Nixon boarded a train full of Warren delegates and swung them over to Eisenhower. Warren announced his retirement in June 1968, a presidential election year, when it was clear that Nixon would win the GOP nomination and, very likely, the next President. He did so expressly so that President Johnson, and not Nixon, would choose his successor. The ensuing Fortas debacle handed Nixon not one, but two, Supreme Court appointments. The worst day of Warren's life was probably the day he had to swear in Nixon as President.

The Court heard oral arguments in United States v. Nixon on July 8, 1974. Warren would die the next day. Among those attending his deathbed were his former colleagues Justices William Douglas and William Brennan. He pleaded with them not to let Nixon "get away with it". In his final moments, as he was about to meet his Maker, Warren was thinking of Nixon. To the last I grapple with thee; from hell's heart I stab at thee; for hate's sake I spit my last breath at thee.

Yet, given all that, Warren did not withdraw his resignation, though he did consider it. But he ultimately thought it would be too unseemly. Those were different times.

[Dan Schiavetta]

Democrats still abide by those rules. Republicans don't.

[F.D. Wolf]

I’m guessing you meant to reply to my prior post, as here we are talking explicitly about a Democrat judge, who, as far as I am aware, is the first to ever break the “rule” about withdrawing, in essence, a resignation for nakedly partisan reasons.

As for the blue slip, it’s more a tradition than a “rule”, the contours of which have changed many times. A Congressional Research Report identified several periods of change:

1917-1955: If a home-state senator objects to a nominee, Judiciary Committe will report out an adverse recommendation, objecting senator gets to state his reasons, but Senate will still take a vote.

1956-1978: Objection from home-state senator freezes all Judiciary Committee action, essentially killing nomination.

1979-1989: Objection from home state senator is essentially meaningless.

1989-2001: Objection is considered “significant factor” by committee but won’t stop action unless senator was not consulted by President, in which case committee action is blocked.

2001-2003: Objection kills nomination

2003-2007: Same as 1989-2001, above.

2007-2018: Objection kills nomination.

2018-present: Objection will not necessarily block circuit court nomination, but will probably kill district court nomination.

I can’t really say I have any particularly strong opinion for the correct way for the Senate to do this, except to say I think it’s silly to give a “home-state senator” veto power over a nominee, but the Senate has always done a lot of silly things.

https://congressionalresearch.com/RL32013/document.php

[Lee Moore]

1956 - D Senate makes it more difficult for R President to get his picks.

1979 - D Senate makes it easier for D President to get his picks. (Note the Omnibus Judgeship Act of 1978 added 117 District Judges and 35 Circuit Judges. Jimmy Carter appointed more than 150 District Judges after this change, and 44 Circuit Judges. The Republicans are such saps ☺)

1989 D Senate makes it more difficult for R President to get his picks.

2001 D Senate makes it more difficult for R President to get his picks.

2003 R Senate makes it easier for R President to get his picks. (ie reversing the Ds 2001 move.)

2007 D Senate makes it more difficult for R President to get his picks.

2018 R Senate makes it easier for R President to get his picks.

So in total :

A D Senate has changed the rule FOUR times to screw a R President. An R Senate has never titted any of those tats.

A D Senate has ONCE changed the rule to speed a D President's picks. An R Senate has changed the rule TWICE to speed an R President's pick (but only after the Ds had done it first.)

The most significant rule change was the 1979 one which enabled Jimmy Carter to appoint all the extra judges created in 1978.

But obviously the Rs are the bad guys here.

[Commenter_XY]

The hypocrisy is thick. 🙂

[Ghost]

I can see a Supreme Court judge or even an appellate court judge being concerned about being replaced by a judge from the other political party, but it seems kind of ridiculous for a district judge who is ready to retire to hold off for another four years because he is concerned that a Republican will replace him.

[David Nieporent]

Do you remember where you were when you heard this judge announce that he was holding off for another four years because he was concerned that a Republican will replace him? I don't.

[F.D. Wolf]

When a Democratic judge announces in October 2023 his intent to seek senior status upon confirmation of a successor, but three days after the presidential election in a letter to the White House rescinds that intent, anyone not born yesterday can make the connection between the letter and the election results.

[Ridgeway]

Mmmm....Burger

I am always surprised that Earl Warren's side gig as a male stripper was not more controversial. I guess the '60s really were different.