Judges have traditionally been eligible to take senior status as soon as they become eligible. In recent years circuit judges informed President they will be taking senior status when their successor is confirmed. This kind of conditional offer was something I wasn’t sure about. One result of this approach was that the judges were not granted senior status immediately after the announcement. They would continue to be in their full active status up until an unknown future date. They could, however, have a second thought and choose not to formalize their senior status. These are not legally binding statements that could be enforced.
Two judges have withheld their senior status announcements during the Trump or Biden administrations. This was apparently due to their dislike for their potential replacements.
David Lat gives 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. This 81 year-old judge has been on the court ever since he was appointed by President Bill Clinton in 1998.
How did it happen? 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. There is reason to believe that this is true. Sources tell me Judge King was not thrilled by the White House’s selection 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. Goodwin, a Emory Law graduate (Order of the Coif), was previously the general counsel for then-Governor Joe Manchin. Manchin appointed Goodwin as the U.S. Senate replacement after the death of Robert C. Byrd. In West Virginia, the Goodwins have become a political and legal dynasty. Carte’s uncle was Judge Joseph Goodwin (S.D.). W. Va. Judge Goodwin was the son of Judge Goodwin and Carte’s cousin. Booth Goodwin served as U.S. attorney from 2010 to 2015. Booth’s spouse, Amy Shuler Goodwin is Charleston’s current mayor.
Oh, Carte Goodwin served as a federal clerk. To none other than… Judge Robert King.
However, being white male Biglaw partner in a family dynastic isn’t the ideal profile for a Biden Administration judicial nominee. 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.
Judge King was not happy with Legato’s selection. 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.
Biden may agree to King’s demands and nominate former clerk. That cave could give judges the power to block presidential nominations. Biden must be careful not to set a precedent even though he is unable to fill the seat.
Judge King isn’t the only circuit judge who has rescinded his announcement regarding senior status:
It isn’t the first instance of a circuit judge reneging on a decision to retire from senior status due to a dispute with his 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. This trend in judges changing retirement plans due to issues with potential successors is not something I like.
Justice Breyer defends himself against the demands of angry progressives who want him to retire. Breyer resists these calls, which he says is a way to not make retirement a political decision. Judges Kanne, King and others have taken a different route. As long as their successors are hand-picked, they will be willing to accept the senior position. However, if the President selects another candidate (as his right), judges “never mind.”