Federal Judge Rescinds Decision to Take Senior Status
In October 2023, Judge Algenon Marbley of the Southern District of Ohio announced his intention to assume senior status upon the confirmation of his successor. The White House never nominated someone to fill Marbley’s seat, however. Senators Sherrod Brown and J.D. Vance could not agree on a suitable replacement, so no pick was named.
Last week, Judge Marbley informed the White House of a change of plans. Judge Marbley no longer intends to take senior status, presumably because he does not want Donald Trump to nominate his replacement.
Judge Marbley’s decision means that Trump will have one less federal judicial vacancy to fill—and there are likely to be fewer judicial vacancies in the next four years than there were over the past four years or during Trump’s first term.
Will Judge Marbley be the only judge to rescind a previously announced intention to go senior? We will see. According to the Administrative Office of the U.S. Courts, there are eight additional federal judges who have announced an intention to go senior and retire, but for which no potential replacement has been nominated. Some have identified a date certain upon which they expect to leave active service, others have not. There are an additional eleven judges who have announced an intent to leave active service for which the Biden White House has nominated a replacement.
In 1968 Chief Justice Earl Warren announced his intention to retire upon the confirmation of his successor, thinking that President Johnson would name his replacement, but it was not to be. The Senate refused to elevate Associate Justice Abe Fortas to Chief Justice, and so Homer Thornberry was not confirmed to the Court before the election. There is little doubt Chief Justice Warren was displeased that newly elected President Richard Nixon would name his successor, but he apparently thought it would be inappropriate to rescind his retirement announcement due to election results, lest his decisions appear too political. This gave Nixon the opportunity to appoint Warren Burger as Chief Justice, and the rest is history.
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