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Donald Trump’s victory in the 2024 presidential election threatens to turn our legal system into a Federalist Society Chick-Fil-A hoedown. But at least two federal judges are doing their best to hold the line.
According to reporting by Reuters, both Max O. Cogburn Jr., district judge for the Western District of North Carolina, and Algenon L. Marbley, district judge for the Southern District of Ohio, have withdrawn their plans to take senior status. Senior status is a sort of a federal judiciary retirement light, which allows the president to appoint a successor.
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Senior status is available to judges over the age of 65 who have completed at least 15 years on the federal bench. Senior judges typically have reduced caseloads but continue to hear cases, including new ones, without formally retiring. Presidents may name new full-time judges to fill those judges’ seats.
Both judges were appointed by Democrats — Cogburn by Barack Obama and Marbley by Bill Clinton — but President Joe Biden was unable to fill those seats. That’s because of the “blue slip” tradition, requiring approval for judicial nominees from home state senators. However, during Trump’s first term in office, the GOP abandoned the custom in order to stack the judiciary with far-right acolytes. Since then, Dems have, more or less, stuck with the system. The Democrats’ unwillingness to fight fire with fire severely limited Biden’s ability to counter the tremendous influence Trump was able to exert in his first term as president. Though the number of judicial appointees Biden shepherded through the process may ultimately wind up higher than Trump I, Biden abandoned valuable appellate court seats in the process.
So, we’re left with 74- and 70-year-olds unable to semi-retire lest they see their seats in the hands of judges who would undo their years of work. Helluva system.
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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].