The Volokh Conspiracy
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"Brazenly Partisan" Judge Wynn Withdraws Senior Status Because Trump
Will Judge Stranch be the next "Obama Judge" to show her true blue colors?
During the last four years, much attention has focused on the Fifth Circuit. But during the first Trump Administration, the Fourth Circuit was the locus of the legal resistance. This court issued landmark rulings against Trump on the Emoluments Clauses, the Travel Ban, and many other policies. During that time, one judge in particular caught my attention time and again: Judge James A. Wynn, an Obama nominee in North Carolina. Consistently, and reliably, he ruled against Trump and other conservative litigants. Yet, as an Article III judge, he had least had the patina of neutrality--that he wasn't on one team or the other, but merely called each case as he saw them. Balls and strikes, as they say.
My colleague Seth Barrett Tillman highlighted a passage from Judge Wynn's concurrence in the Emoluments Clauses en banc decision:
Without a doubt, a lawsuit brought by the State of Maryland and the District of Columbia against the President of the United States catches attention outside the walls of the courthouse. How then should the Court avoid the appearance of partiality when there are eyes upon it? By applying the law and abstaining from grandiose screeds about partisan motives. Or, put another way—by doing its job. And that is exactly what the excellent majority opinion does.
But to the contrary, our dissenting colleague insinuates that "something other than law [is] afoot" here. First dissent at 308–09 (Wilkinson, J.).
With Judge Wynn, was something "other than law afoot"?
In December 2017, I wrote a post about Wynn's questions during the travel ban en banc oral argument:
During the en banc proceeding in Richmond on Friday, which I attended, Judge James A. Wynn Jr. asked Department of Justice lawyer Hashim Mooppan about the relevance of the president's inflammatory tweets to the Establishment Clause analysis. (The exchange begins at 24:20.) "What do we do with that," he asked referring to the tweets. "Do we just ignore reality and look at the legality to determine how to handle this case?" Though the framing of his question was somewhat unclear, the premise was pellucid: What should a judge do if the law cuts one way, but reality cuts the other?
With Judge Wynn, what happens if the law cuts one way but reality cuts another? Which path does he follow?
I think that final sentence is a perfect segue to the news of the day. In January 2024, Judge Wynn announced that he would take senior status upon the confirmation of his successor. President Biden nominated Ryan Park, the North Carolina Solicitor General. I flagged that pick at the time, noting that Park was apparently rewarded for losing SFFA v. UNC with a circuit court nomination. I had written about Park way back in 2015. He consistently tells people he clerked for Justices Ginsburg and Souter. But the reality is he was hired by Justice Souter, and was detailed to RBG. It is such bad form to trivialize the hiring Justice.
Well, Park would never receive a floor vote. And he was not part of the "Deal" in which the Republicans allowed votes on several District Court nominees if pending Circuit Court nominees from Tennessee and North Carolina would remain unfilled. Of course, the rub of that deal is that the judges in those two states--Judge James Wynn and Judge Jane Stranch--may withdraw their senior status. These two judges were extra bargaining chips that Senator Schumer kept in his back pocket.
On December 13, like clockwork, Judge Wynn wrote to President Biden:
I write to advise that, after careful consideration, I have decided to continue in regular active service as a United States Circuit Judge for the Fourth Circuit. As a result of that decision, I respectfully withdraw my letter to you of January 5, 2024. I apologize for any inconvenience I may have caused.
Did Judge Wynn avoid the appearance of partiality? No, he did the exact opposite. Was something other than law afoot? Absolutely. Here, it is fairly clear that the law cuts one way (a judge can rescind senior status) but reality cuts the other (only a partisan would do so after his preferred candidate loses the election).
Senator Tom Tillis of North Carolina states the issue plainly:
"Judge Wynn's brazenly partisan decision to rescind his retirement is an unprecedented move that demonstrates some judges are nothing more than politicians in robes," Tillis said in a news release Saturday. "Judge Wynn clearly takes issue with the fact that Donald Trump was just elected President, and this decision is a slap in the face to the U.S. Senate, which came to a bipartisan agreement to hold off on confirming his replacement until the next Congress is sworn-in in January.
For all the faux outrage about judicial ethics with Justices Alito and Thomas, there will only be crickets on the left about Judge Wynn. Which proves that the outrage is merely performative--except judges still get death threats.
Chief Justice Roberts was copied on this letter. Does the Chief think that Judge Wynn is an "Obama judge"? How else to explain it? Seth observed:
I don't doubt Judge Wynn's fine sentiments from his concurrence. I do not doubt that back in 2020, he sincerely believed what he had written. It is now 2024. And, in the future, I do not see how Wynn's colleagues or the wider public will see his stating such views in quite the same light. If his taking senior status was "doing [his] job," then why did he rescind? Should not his colleagues and the public see "partisan motives" on this occasion? Or, perhaps, Wynn recently suffered from a bout of unexpected good health and longevity?
The other shoe waiting to drop, of course, is Judge Jane Stranch. Back in May, I observed that the replacement for Stranch was her first law clerk, and a partner at her family's law firm. It is a total family affair. If Judge Stranch withdraws her senior status request, she will look as nakedly partisan as does Judge Wynn, and reaffirm the worst type of nepootism. Now Judge Stranch probably does not read this blog, or care for much of what I write. But Judge Stranch will still have to hold her head up high in front of her colleagues on the Sixth Circuit. And what will they think of her?
In the past, I've proposed what I call "Bilateral Judicial Reform." These proposals will help and hurt both sides, equally. Maybe another proposal is in order: a Judge has one, and only one chance to request senior status. If that request is withdrawn, the judge will never again be able to request senior status.
