A US appeals court judge has taken the rare step of revoking his decision to retire from active service on the bench, depriving Donald Trump of the ability to fill a judicial vacancy.
US circuit judge James Wynn, an appointee of Barack Obama on the fourth US circuit court of appeals based in Richmond, Virginia, disclosed his decision in a letter to Joe Biden on Friday.
It marked the first time since Trump won the 5 November presidential election that a Democrat-appointed appellate judge has rescinded plans to take senior status, a form of semi-retirement for judges that creates vacancies presidents can fill.
Two trial court judges have similarly done so, prompting complaints by conservatives including Mitch McConnell, the Senate Republican leader, who railed about an “unprecedented” spate of judges un-retiring post-election.
Thom Tillis, the Republican senator who had fought to prevent Biden’s pick to fill Wynn’s seat from winning Senate confirmation, said on X that Wynn had engaged in a “blatant attempt to turn the judicial retirement system into a partisan game”.
Wynn sent his letter a day after Biden’s nominee to succeed him, the North Carolina solicitor general Ryan Park, formally withdrew from consideration after his path to win Senate confirmation vanished.
Senate Democrats and Republicans post-election cut a deal that cleared the way for votes on about a dozen of Biden’s remaining trial court nominees in exchange for not pushing forward with four appellate court nominees, including Park.
A spokesperson for Chuck Schumer, the Democratic Senate majority leader, has said all four lacked sufficient votes to be confirmed.
That left four seats without confirmed nominees that Trump could try to fill upon taking office on 20 January. But two vacancies were contingent upon two Democrat-appointed judges following through on their plans to leave active service.
Those judges included Wynn, 70, who in January announced plans to take senior status contingent upon a successor being confirmed. On Friday, he told Biden he had changed his mind.
“I apologize for any inconvenience I may have caused,” Wynn wrote.
The Article III Project, a group run by Trump ally Mike Davis, late Friday announced it had meanwhile filed judicial misconduct complaints against the two trial court judges who likewise rescinded retirement plans post-election.
Those judges are the US district judge Max Cogburn in North Carolina and the US district judge Algenon Marbley in Ohio. Neither responded to requests for comment.
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