The Article III project filed a judicial misconduct complaint against Judge Wynn of the Fourth Circuit. Yesterday, I wrote about Wynn’s “brazenly partisan” withdrawal of his intent to take senior status because Trump prevailed. But the facts are even worse than I knew. The complaint recites:
In January 2024, Judge Wynn announced his intention to assume senior status upon the confirmation of his successor.1 In March 2024, he attended a “retirement celebration” held in his honor, where prepared remarks from President Obama, who had nominated Judge Wynn, were read to the crowd.
Is it common for the President who appointed a judge to provide remarks when the judge retires? When Judge Kim Gibson, for whom I clerked, took senior status, there was a statement read from Circuit Justice Alito (who attended the same High School as Judge Gibson). I thought that was quite appropriate. But from the former President? From nomination to retirement, Judge Wynn was an Obama judge.
As we know now, he did not retire. The complaint states the obvious:
Given the timing of his announcement, the fact that he celebrated his retirement nine months earlier, and the lack of any other provided explanation combine to make clear that Judge Wynn’s decision to rescind his announcement was likely made because of the outcome of the 2024 presidential election. Indeed, the media is already reporting that Judge Wynn apparently changed his mind as a result of the election.5 Even worse, the timing of Park’s needless withdrawal followed immediately by Judge Wynn’s letter gives the appearance that there was coordination between Park, Judge Wynn, and the White House to give the misimpression that Park’s pointless withdrawal—and not the 2024 election results—was what prompted Judge Wynn to change his mind.
Certainly the judiciary has the power to determine what communications arose between Wynn, the Senate, and the White house. If Judge Newman can be forced to sit for a medical exam, Judge Wynn can turn over his email and call logs.
Let’s assume the facts are as stated. What is the remedy? I suppose Judge Wynn could be forced to actually take senior status, to avoid any appearance of impropriety. Or maybe he could be forced to recuse from any case involving the Trump-administration. After Justice Ginsburg called President Trump a “faker” and worse, she apologized, but declined to recuse. But as we are often reminded, the lower courts are subject to an enforceable ethics code.
Professor Rob Leider suggested that Trump should go ahead an nominate somone, and let the Senate confirm them:
This is a major separation of powers problem, and it’s likely unconstitutional. Presidents choose judges. Judges don’t nominate their successors.
President Trump should nominate someone for his seat, and the Senate should confirm. https://t.co/xuw9P9Dgm8
— Robert Leider (@LeiderRob) December 15, 2024
Another colleague wrote that Congress should pass an appropriations riders saying notwithstanding any other statutory provision, no funds may be spent on staff or chambers of judges who withdraw their senior status request. Going forward, bilateral judicial reform can solve this problem.
Of course, lurking in the background is Judge Stranch of the Sixth Circuit. Were she to withdraw her request for senior status, especially after what happened with Judge Wynn, the appearance of playing politics will be just that much worse.
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