A “grassroots” organization founded by conservative lawyer and Donald Trump supporter Mike Davis has filed a judicial misconduct complaint against a federal judge and Democratic appointee in North Carolina who rescinded his plans to take “senior status” last week, calling the decision to unretire on the future president—before he can take office and choose a Republican replacement—”politically motivated” and a betrayal of “the public trust in the judiciary.”
The Article III Project, which describes itself as using “brass knuckles to fight leftist lawfare,” filed the complaint on Monday and posted it online, along with a statement explaining why it was targeting Fourth Circuit Judge James Wynn Jr., who announced his decision to rescind his senior status in a letter to President Joe Biden on December 14.
“The complaint raises serious concerns about violations of the Code of Conduct for United States Judges following Judge Wynn’s abrupt decision to withdraw his earlier announcement of retirement in December 2024, immediately following the outcome of the 2024 presidential election,” according to a statement from A3P.
“A3P’s complaint makes clear that this sudden reversal was politically motivated and undermines public trust in the judiciary.”
Wynn, appointed by former President Barack Obama in 2009 and confirmed by the Senate in 2010, is a federal judge who previously served on the North Carolina Court of Appeals and briefly on the North Carolina Supreme Court.
Last week, President Biden’s nominee to replace Wynn, North Carolina Solicitor General Ryan Park, decided to unretire after Democratic Senate Majority Leader Chuck Schumer reported that Park lacked the necessary votes for Senate confirmation.
Republicans chastised Wynn following the move, with Sen. Thom Tillis (R-N.C.) and Senate Leader Mitch McConnell (Ky.) issuing public statements warning of “significant” ethics complaints against him and other judges.
“He’s earned it,” McConnell said on X, formerly known as Twitter, Monday.
https://x.com/LeaderMcConnell/status/1868347668029931902
In addition to Wynn, A3P leaders have announced that they have filed similar misconduct complaints against two trial court judges who have also withdrawn their senior status bids after the 2024 election.
U.S. District Judge Max Cogburn Jr. of the Western District of North Carolina, another Obama appointee, had his name quietly removed from the federal judiciary’s list of future vacancies late last month.
Just weeks after U.S. District Judge Algenon Marbley of the Southern District of Ohio, a Bill Clinton appointee, announced he would remain active after officially rescinding a “senior status” bid to semi-retire in October 2023.
“Until Judge Wynn, no federal appellate judge had ever rescinded a retirement or senior-status letter after a presidential election,” according to the A3P complaint. “Indeed, they have long stood by their announcements of intent to retire or take senior status despite electoral outcomes.”
Wynn specifically violated Canons 2 and 5 of the Code of Conduct for US Judges, as detailed in the A3P complaint.
The complaint states that “Canon 5 prohibits United States judges from undertaking a variety of political actions, including opposing a candidate for public office, soliciting funds for a political candidate, or “engag[ing] in any other political activity.”
“Rescinding a public retirement or senior-status letter because of the outcome of a presidential election is the epitome of engaging in political activity and opposing a political candidate.”
The complaint cites Canon 2: “A judge should always act in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
According to A3P, withdrawing a public senior status or retirement letter in response to the results of a presidential election “strikes at the heart of impartiality and public confidence: a judge who changes his public stance solely based on presidential elections.”
“On the public record as it currently exists, every indication is that Judge Wynn—who had already celebrated his retirement nine months earlier—had a change of heart solely because of the outcome of the 2024 presidential election,” according to A3p.
In the cases of Cogburn and Marbley, Biden never nominated anyone to replace the two judges due to a split in support from their respective state senators, who rescinded their senior status. Under the Senate’s “blue slip” policy, home-state senators can support or oppose presidential nominees.
Marbley faced opposition from Republican Vice President-elect JD Vance, Ohio’s Republican senator, and Democratic Sen. Sherrod Brown. For Cogburn, Biden would have had to get his choice past Tillis and Republican Sen. Ted Budd.
“Democrats don’t have enough votes to confirm these [circuit] nominees, and both seats are in red states with two Republican senators,” George Washington University law professor John P. Collins told Reuters last month. “So even if blue slips came back, you’d get a far-right replacement.”
