Outgoing Senate Minority Leader Mitch McConnell (R-Ky.) said on Monday that President-elect Donald Trump’s administration should ask two judges who reversed their retirement decisions in recent weeks to recuse themselves in certain cases.
The GOP leader accused the two judges of engaging in “open partisanship” by “un-retiring” and suggested they did so after Trump’s victory in early November.
“They rolled the dice that a Democrat could replace them and now that he won’t, they’re changing their plans to keep a Republican from doing it,” McConnell said.
During his floor speech, McConnell did not specifically name the judges who reversed their decisions to retire. However, U.S. District Judge Max Cogburn in North Carolina and Ohio U.S. District Judge Algenon Marbley recently reversed decisions to take “senior” status, which would have allowed their seats to be filled by the incoming administration.
“It’s a brazen admission. And the incoming administration would be wise to explore all available recusal options with these judges, because it’s clear now that they have a political finger on the scale,” McConnell said, adding that he believes that such a move undermines the judiciary.
Cogburn, an appointee of a Democrat presidential administration, announced in 2022 that he planned to take senior status, a form of semi-retirement, upon the confirmation of a successor.
James Ishida, the circuit executive for the Richmond, Virginia-based Fourth U.S. Circuit Court of Appeals, told media outlets last week that Cogburn had decided to remain in active service and sent the White House a letter to that effect.
Cogburn’s decision came after another jurist, Marbley, based in Columbus, Ohio, withdrew his own plans to take senior status just days after Trump emerged as the victor in the Nov. 5 election. Marbley is an appointee of a Democrat presidential administration.
Cogburn’s reversal was disclosed the same day the judiciary said one of his fellow jurists in the Western District of North Carolina, U.S. District Judge Frank Whitney, had elected to take senior status, which went into effect on Dec. 1.
Whitney is an appointee of a former Republican administration and one of the first judges since Trump’s election to announce plans to take senior status.
Any nominee whom President Joe Biden might have picked to fill Cogburn’s seat would have needed the approval of North Carolina’s two Republican senators, including Sen. Thom Tillis (R-N.C.), a member of the Senate Judiciary Committee, due to the U.S. Senate’s “blue slip” custom.
Tillis had been critical of how the White House went about selecting a nominee to fill a North Carolina seat on the Fourth Circuit, Ryan Park, whose nomination is no longer expected to receive a floor vote following a bipartisan lame-duck deal on judicial nominations announced last week.
McConnell said of the two judges who decided not to retire, “I can only assume they will face significant ethics complaints.”
McConnell’s remarks on Monday may be his last as the Senate Republican leader. Earlier this year, he had announced that he would step down from his position as Senate Republican leader, although his Senate term ends in January 2027.
Last month, following the election, GOP senators voted to name Sen. John Thune (R-S.D.), McConnell’s longtime deputy, as the incoming Senate Republican majority leader.
The Epoch Times contacted the Western District of North Carolina, where Cogburn is located, and the Southern District of Ohio, where Marbey is located, for comment but received no response by publication time.
