New in Civitas Outlook: "Brazenly Partisan" Judges Scrutinize Trump's Mind, But Refuse To Explain Themselves

I write about Judge Wynn's decision to rescind his senior status because Trump won.

Judge James Wynn of the Fourth Circuit was content to have President Biden replace him. But in December 2024, when it became clear Biden's nominee would not be confirmed,Wynn rescinded his senior status. He offered no actual reason, but we do not have to ignore reality: He didn't want Trump to replace him. Two other District Court judges made the same decision. Yet the judicial misconduct process refused to acknowledge this reality. I wrote two posts on this issue.

Judge Wynn was the subject of my latest column for Civitas Outlook. Here is an excerpt:

The judges offered no actual explanation for their decision. Judge Wynn, for example, wrote to President Biden that "after careful consideration, I have decided to continue in regular active service." Upon "careful consideration," is code for "further election." Senator Tom Tillis of North Carolina said that Wynn made this "brazenly partisan" decision because he "clearly takes issue with the fact that Donald Trump was just elected President." The Article III Project filed a judicial misconduct complaint against these three judges. The complaint charged that "Judge Wynn's decision to rescind his announcement was likely made because of the outcome of the 2024 presidential election." The group states that Wynn "had a change of heart solely because" Trump won.

Judge Wynn responded to the complaint. He didn't offer any actual explanation for rescinding his senior status. Wynn insisted that federal law does not prevent him from changing his mind. Rather, he said, "[c]hoices about retirement and senior status are deeply personal and often influenced by multiple factors." One would think that Wynn could offer some reason to defend his action. But he offered none. Instead, he insisted that he was under no obligation to explain his motivation. Wynn maintained that "no court has ever found it proper to inquire into an Article III judge's reasons for taking, or not taking, senior status." Wynn added, "Accusations of partisanship should not be entertained absent specific evidence of misconduct." If the judge made this decision for some legitimate reason, it would have been straightforward to state it. But he didn't; instead, he hid behind a legal process.

In October 2025, the misconduct complaints against Judge Wynn, and the other two judges were dismissed. Chief Judge Debra Livingston wrote the opinion in each case. Livingston found "there is no genuine issue of fact." She added that whether "the Judge considered the outcome of the election as one factor influencing his decision to withdraw the January 5 letter" was "a factual issue I need not resolve." Had Chief Judge Livingston simply asked Judge Wynn why he rescinded his senior status, the judge could have defended himself with some legitimate reason. But he didn't offer such a reason, because there is no plausible, legitimate reason. Regrettably, there is a brazen double standard for brazenly partisan judges. The federal courts routinely scrutinized President Trump's motivations for improper purposes. But when it comes to rooting out judicial misconduct, judges hide behind a veil of ignorance.

And the conclusion:

There is a never-ending stream of faux-outrage about judicial ethics, but these self-professed experts ignore actual problems where judges engage in partisanship. Let's not forget Justice Ruth Bader Ginsburg. Before the 2016 election, Ginsburg called Trump a "faker" and said she would move to New Zealand if he prevailed. And the day after the election, Justice Ginsburg wore her "dissent" jabot to Court. Ginsburg was clearly protesting Trump's election. Yet Ginsburg didn't leave the country, as her retirement would have given Trump the power to appoint her replacement. Ginsburg likely had the same thoughts as Judge Wynn. Fast-forward four years. On Ginsburg's deathbed, her last words were, "My most fervent wish is that I will not be replaced until a new president is installed." Ginsburg said what Wynn clearly thought. Should we just look at Ginsburg's action behind the veil of ignorance? She was a brazenly partisan critic of Trump, yet she decided a host of cases against Trump while in office. Is there much of a practical difference between what Ginsburg did and what Wynn did?

In recent years, there were routine calls for impeachment when Justice Alito's wife flew a flag, and Justice Thomas's wife engaged in politics. Yet when we see progressive judges personally crossing the lines into the political realm, there are only crickets. Here, the judiciary took no action to police political judges — not even a reprimand. Given this failure to acknowledge reality, the only remaining remedy for political judges is the political process. And if those steps are inadequate, further remedies should be on the table. 

Comments

[ah....Clem]

Of course. No jurist who gives even a rat's ass about the law wants more Trumpy judges on the bench.

[David Nieporent]

One would think that Wynn could offer some reason to defend his action. But he offered none.

One would actually think that no judge would dignify such an accusation with a response at all.

Not surprising that Blackman comes out with this Look A Squirrel thing a few days after a controversy arose about Judge Emil Bove — the guy involved in Trump defying court orders before he was on the bench — unethically attending a political rally by Donald Trump after he was on the bench.

That having been said, I agree with Blackman that Ginsburg should've been forced to step down after she said "My most fervent wish is that I will not be replaced until a new president is installed."

[Armchair]

Our Paralegal in chief comes in with "Look A Squirrel, Emil Bove!"

[JoeFromtheBronx]

Well, Ginsburg was punished in the end, more or less.

She died knowing what would happen. Don't see anything comparable happening on the other side.

[Brett Bellmore]

I'm honestly puzzled. If whether or not to retire is a personal decision entirely at the judge's own discretion, then he simply doesn't have to justify it. Blackman has to demonstrate that it's on some improper basis, such as having been bribed.

So it seems to me the first step here is establishing that it's NOT entirely at the judge's own discretion. I see not the slightest effort to clear that initial bar.

It's true that here have been utterly silly demands that judges who rule in Trump's favor resign for no good reason. Try to be better than that.

[Social Justice is neither]

Seems more spotlight/paper trail/protest over anything serious. This sort of thing does put the lie to Robert's claim that there are no red judges or blue judges because they've made plain they are activists first and officers of the court and it's tenets a very distant second at best.

[Armchair]

" If whether or not to retire is a personal decision "

I think what's being pointed out here is not that it's just a "personal decision" but actually a "political decision".

The judge declared that he intended to take senior status. Personal choice. But when it became apparent his preferred replacement wouldn't be confirmed, and a President he didn't like was about to take office, suddenly it got reversed.

It appears to be a political decision, where the judge is looking to control who his successor is.

[Brett Bellmore]

A political decision is just a subset of a personal decision. If you can do it for shits and giggles, you can do it because of the politics.

[santamonica811]

Saying to oneself, "I will not retire, if I know or suspect that an incompetent or corrupt judge will take my place." seems to be a paradigm example of a personal decision.

(If Trump has been elected to his second term, and had immediately switched back to being a Democrat (but was still a pathological liar, and an evil and shitty and unethical person, and was still going to appoint awful judges), I think it's obvious to most of us that this particular judge would have still changed his mind. His decision had little or nothing to do with a Republican becoming President . . . it had everything to do with the fact that a sleazy sack of crap was becoming President.

[Lee Moore]

I agree with Brett. A judge is supposed to be non partisan / unbiased as regards his behavior in court. He doesn't have to be non partisan otherwise, eg in how he votes, or what sort of replacement for himself he would want to see.

Obviously the more nakedly partisan you are in your behavior outside the court, the more likely it is that people will suspect that you carry your partisan opinions into court with you. But simply having partisan opinions is not disgraceful in a judge. It's deploying them in your court behavior that needs to be avoided.

In practice, of course, most judges are fairly obviously partisan in their in-court behavior at least some of the time, and many, pretty much all the time. But that's another story.

[SimonP]

I am sure that Josh is just busy working on his "This is why what Bove did was perfectly fine, and anyway lots of lib judges have done the same thing, and here's what Ho says about it" post. He just needs to wait for the right part of the news cycle to push it out.

[David Nieporent]

Ginsburg said what Wynn clearly thought.

"Clearly!"

Ginsburg likely had the same thoughts as Judge Wynn.

"Likely!"

[Longtobefree]

How did "senior status" come about?
To anyone not a lawyer, either you are a judge or you are not.

[apedad]

https://en.wikipedia.org/wiki/Senior_status#Statutory_requirements

[thesafesurfer]

Why don't you just cite someone you never met before and interviewed on the street? There is no difference whatsoever between that and Wikipedia.

Try peer reviewed sources at some point in your life.

[Jonny Scrum-half]

What makes you think that there are "peer-reviewed sources" for what's in a federal statute?

[John 4]

Because he’s a literal moron who doesn’t understand how anything works and is angry as a result.

[Mark Leen]

What further remedies are you referring to?

[Stuart]

"when it became clear Biden's nominee would not be confirmed"

Anything Brazenly Partisan here?

[CommentMonkey]

A threshold question is whether it is even improper for judges to time their taking of senior status based on which president will replace them. I'm not sure it is. Judges are not required to abstain from politics altogether. Over-generalizing a bit, their participation in politics is limited in two basic ways: (1) they can't allow political considerations to influence their decisions in cases before them and (2) they can't participate publicly in political activity. I don't think either of those limits would apply to decisions whether to take senior status.

So it seems to me what Wynn did was ethically permissible, overtly political though it obviously was. What would have been a problem is if he had announced his motive, as Blackman believes he should have been forced to do. That would have been a public statement on a political matter (the relative merits of one president over another as a selector of the judge's replacement).

Contra Blackman, I think the best course of action is to refrain from scrutinizing these senior status decisions, understanding that politics creeps in on both sides, and the net effect doesn't materially damage the judiciary as an institution.

[thesafesurfer]

The judge allowed political considerations to influence his decision on senior status which directly confers he would do the same in his cases.
The judge's actions caused damage to the claim of impartiality by jurists and this does materially damage the judiciary as an institution.

[David Nieporent]

overtly political though it obviously was.

"Overt" means the opposite of what you think it does. Maybe it's obvious that politics motivated his decision, but it's by definition not overt.

[CommentMonkey]

Yeah, that was the wrong word.

[Tabman]

How is it constitutional for a judge---or justice---to announce a retirement (or senior status) on the confirmation of their successor? Until they actually resign or take senior status, there is no vacancy to fill. How is there a nomination to fill a non-vacancy? And when did this practice start? Justices used to simply retire/resign. Now it appears that the "upon confirmation of a successor" is becoming the norm.

[cannpro]

I actually agree here. This practice, which appears to be new, makes no sense to me. Also by appointing someone before there is a vacancy you a denying the right to a future congress or president who should have the authority to fill the vacancy when it is actually available.

[Brett Bellmore]

Only if between you doing it and the vacancy actually appearing, there's a change of administration or a new session of Congress. The practice IS dubious and fairly new, but I really doubt that in any case where the vacancy happened after a change of Senate or President you'd be able to get away with it.

[Bubba Jones]

For federal employees generally, conditional retirements are codified.

Here's an article on the history and ethics of judicial retirement.

In 2005, Justice Sandra Day O’Connor submitted her “decision to retire . . . upon the nomination and confirmation of my successor.”[20] And this year, Justice Stephen G. Breyer wrote: “I intend this decision to take effect when the Court rises for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed.”[21]

https://journals.law.harvard.edu/jlpp/the-ethics-of-succession-planning-on-the-federal-judiciary-robert-luther-iii/

§ 715.202 Resignation.
(a) General. An employee is free to resign at any time, to set the effective date of his resignation, and to have his reasons for resigning entered in his official records.

(b) Withdrawal of resignation. An agency may permit an employee to withdraw his resignation at any time before it has become effective. An agency may decline a request to withdraw a resignation before its effective date only when the agency has a valid reason and explains that reason to the employee. A valid reason includes, but is not limited to, administrative disruption or the hiring or commitment to hire a replacement. Avoidance of adverse action proceedings is not a valid reason.

[cannpro]

"If the judge made this decision for some legitimate reason, it would have been straightforward to state it."

If the judge made this decision for some illegitimate reason, it would have been straightforward (from Blackman) to state it.

He doesn't state an illegitimate reason because there is none. Political considerations about when to retire (or abstain from retirement) are completely normal and expected. How has Josh Blackman's penchant for whining about the most trivial of grievances anytime things don't go his way not embarrassed him into hiding his head in a burlap sack?

[thesafesurfer]

The public's perception of judges as partisans influenced directly and concretely by their political ideology is normal and expected.

[loki13]

...The "Blackman is auditioning for a role in the Trump DOJ" Tour continues.

[SimonP]

There was a time that I was skeptical that anyone in the Trump Administration would want to come anywhere near this steaming pile of embarrassing self-promotion, but I find that I no longer believe that it is implausible.

[ReaderY]

You have to remember that with Blackman, “brazingly unethical” is simply a euphemism for “not in my interests.” The corollary is equally true. Anything and everything in his interests is defended as ethical.

[cannpro]

Exactly. Blackman's logic doesn't even make sense on it's own terms.

"But he didn't offer such a reason, because there is no plausible, legitimate reason." Judges don't have to offer reasons not to retire. Blackman thinks he is so special he is owed an explanation every time things don't go his way.

[Drewski]

"There is a never-ending stream of faux-outrage about judicial ethics, but these self-professed experts ignore actual problems where judges engage in partisanship."

Indeed, Josh. Indeed. Self-professed experts putting out a never-ending stream of faux-outrage is a thing. For example, faux-outrage about judicial retirement from someone who also wrote about how bribery of Justice Thomas is not a problem because he's solidly conservative.

[thesafesurfer]

Was the bribery of Justice Thomas before or after Trump colluded with Russia?

[David Nieporent]

Both.

[bernard11]

I guess Blackman was hoping for one of those jobs.

I don't recall. Was he equally outraged when McConnell blocked Garland for blatantly partisan reasons?

[David Nieporent]

I don't recall. Was he equally outraged when McConnell blocked Garland for blatantly partisan reasons?

Blackman's entire argument is stupid except — as loki points out — as a pick-me thing, but this isn't a good rebuttal. McConnell's actions may have been sleazy and against norms, but he — unlike a federal judge — does not have any legal or ethical obligation to not act blatantly partisanly.

[bernard11]

Fair enough, I guess, but it hardly speaks to the desire for non-partisan judges.

[Brett Bellmore]

As as been repeatedly pointed out to you, it wasn't even against norms. Supreme court nominations have seldom been approved in a Presidential election year when the Senate is controlled by the opposing party, and not even holding a vote on nominees has been a common way of rejecting them. For the first century or so, most Supreme court nominees who were rejected didn't even get votes.

For instance, Justice McKinley died in July of 1852, a Presidential election year. Filmore was a Whig, the Senate was controlled by Democrats. He made 3 nominations, the Senate ignored all three.

What may be fooling you is that the Senate and White House being held by opposing parties was fairly uncommon in the 20th century, so there have been few occasions for this contrary norm to be displayed.

[Sarcastr0]

BrettHistory.

It was unprecedented to not even hold a hearing or vote.

For instance, Justice McKinley died in July of 1852
When you go back to 1850 to show something is normal, it's not normal you're just irrationally committed.

[Brett Bellmore]

Nothing that has been done before is "unprecedented".

When you're living in a nearly 250 year old country, and you want to pretend everything that happened more than a century ago is nonexistent, you're suffering from presentism.

[Bubba Jones]

Delay is the inherent super power of the Senate. It's the power by which is checks all other aspects of government.

[SRG2]

Did anyone not guess that this would be a Josh whinge just from the headline?

[David Nieporent]

You know whose fault this whole scenario obviously is? John Roberts. He should resign immediately.

[loki13]

I think he waiting for ... Blue June.

I am so angry at myself for remembering that.

[hobie]

Dear AI, how many Republican district judges have rescinded senior status?

"At least three Republican-appointed federal judges have rescinded their decisions to take senior status in the past two decades.

The judges are:

Judge Rudolph Randa (U.S. District Court for the Eastern District of Wisconsin) rescinded his senior status letter in 2008 after Barack Obama won the presidential election.

Judge Michael Kanne (U.S. Court of Appeals for the Seventh Circuit) rescinded his senior status in 2018 after President Trump's administration did not select his preferred successor for the seat.

Judge Karen Caldwell (U.S. District Court for the Eastern District of Kentucky) rescinded her senior status in 2023 after a deal for her preferred successor fell apart. "

[MollyGodiva]

Rescinding senior status is in no way an actionable political activity. This entire post is absurd.

We have created a system where federal judges are unelected and unaccountable politicians. We can't complain now that the judges are seen as political.