Congress
Republicans cry foul with some judges ‘unretiring’ before second Trump term
With little more than a month to go before Donald Trump’s second term in the White House, a set of federal judges who previously announced retirements are pulling back those decisions. And Republicans are none too pleased.
Most prominent among the federal jurists to reverse a retirement announcement is Judge James Wynn of the 4th Circuit Court of Appeals. His name vanished from a list of pending vacancies over the weekend, joining two district court judges in North Carolina — Algenon Marbley and Max Cogburn — in pulling back their decisions once it became clear President Joe Biden would not be able to appoint their successors.
In a letter to Biden, Wynn wrote “that, after careful consideration, I have decided to continue in regular active service” on the bench. All three were appointed by Democratic presidents.
Their decisions serve to deny Trump further bench vacancies to fill as he hopes to capitalize on his push to move the federal judiciary rightward. Though judges routinely time retirements to allow a desired president to appoint their successors, the GOP backlash has been consistent and heated.
“Judge Wynn’s brazenly partisan decision to rescind his retirement is an unprecedented move that demonstrates some judges are nothing more than politicians in robes,” said Sen. Thom Tillis (R-N.C.), whose state is part of the circuit, in a statement over the weekend. “The Senate Judiciary Committee should hold a hearing on his blatant attempt to turn the judicial retirement system into a partisan game, and he deserves the ethics complaints and recusal demands from the Department of Justice heading his way.”
Tillis isn’t alone in his criticisms, as Minority Leader Mitch McConnell has previously warned judges of consequences should they rescind previously announced retirements.
“Never before has a circuit judge unretired after a presidential election,” McConnell said on the Senate floor on Dec. 2. “It’s literally unprecedented. And to create such a precedent would fly in the face of a rare bipartisan compromise on the disposition of these vacancies.”
McConnell has urged any judge pulling back on their retirement announcements to recuse themselves from matters coming before them. He urged the incoming Trump administration to “explore all available recusal options with these judges,” since in his view they “have a political finger on the scale.”
“It’s hard to conclude this is anything other than open partisanship,” the outgoing Republican leader said on the floor.
For Democrats’ part, they pointed to previous instances of Republicans making choices around the federal bench post-elections, including McConnell’s decision to not consider a Supreme Court vacancy during the 2016 election cycle while President Barack Obama was in office.
“When I hear the senator [McConnell] come to the floor … and talk about whether there is any gamesmanship going on, I don’t know. But I can tell you we saw it at the highest possible level in filling the vacancy on the Supreme Court when Antonin Scalia passed away,” said Senate Judiciary Chair Dick Durbin (D-Ill.) on the floor following McConnell’s remarks.
The backdrop for the reconsideration of retirement announcements is a deal struck between Majority Leader Chuck Schumer and Republicans to grant Trump four circuit court nominations to fill — Democrats said President Joe Biden’s replacement picks for those slots lacked the votes for confirmation — in exchange for quicker consideration of a dozen or so district court vacancies.
But Wynn’s decision — he was one of those four circuit court positions — complicates that math. Durbin defended the deal as having “reflected some realities that haven’t been publicized much.”
“Two of them did not have the total support of the Democratic caucus — it was an uphill struggle,” Durbin said. “Two more of them decided to stay on and not leave,” he added, reflecting the future decision of Wynn to retain active status on the bench.
Another one of those involved in the appeals court deal, Adeel Mangi, decried the “broken” confirmation process in a letter to Biden obtained by BLaw on Monday. He would have been the first Muslim appeals court judge in the country, if confirmed, but couldn’t command sufficient support from Democrats.
“This is no longer a system for evaluating fitness for judicial office,” Mangi wrote in the letter. “It is now a channel for the raising of money based on performative McCarthyism before video cameras, and for the dissemination of dark-money-funded attacks that especially target minorities.”
He added: “For my part, I entered this nomination process as a proud American and a proud Muslim. I exit it the same way, unbowed.”
On the whole, reconsidering a judicial retirement decision is not an entirely new phenomenon.
Take, for example, the case of Judge Karen Caldwell of Kentucky. The longtime George W. Bush appointee was ready to step aside in 2022, but on the condition that Biden appoint a suitable conservative replacement in her place. But that rumored deal between Biden and McConnell eventually fell through, and Caldwell rescinded her initial decision to retire.
There are other recent examples. A conservative Wisconsin federal judge, Rudolph Randa, pulled back on his announced retirement in 2008 following the victory of President Barack Obama. And an appeals court judge from Indiana, Michael Kanne, abandoned his retirement in 2018 after then-Vice President Mike Pence spiked his intended successor from being tapped.
Sen. John Cornyn said Monday he will not support Todd Blanche’s confirmation as attorney general absent a written modification to the settlement agreement President Donald Trump entered into with his own administration.
Opposition from the Texas Republican could sink Blanche’s nomination in a highly anticipated Judiciary Committee vote scheduled for Thursday.
While Cornyn said he is in talks with Blanche and others at the Justice Department, he has not secured changes he has demanded to the settlement agreement between Trump and the IRS. Those include formally rescinding a proposed $1.8 billion “anti-weaponization fund” and restricting the scope of tax audit immunity granted to the president and his family.
Cornyn told reporters he needs the document to be signed by Blanche but did not specify whether Trump also needs to sign it.
“We’re talking about that. That hasn’t been fully resolved yet,” Cornyn said in a subsequent interview when asked if Trump needs to sign the modification as well. “We’re still talking. I mean, there’s different ways to approach it.”
Time is running out for Blanche to meet Cornyn’s demands ahead of Thursday’s committee vote, where any one Republican’s opposition could be fatal to the nomination. The senator said Blanche and the administration have been so far “reluctant” to follow through.
At his nomination hearing last week, Blanche testified that plans for the payout fund were dead and that the audit agreement was more limited than set out in the settlement. But Cornyn honed in on the text of the agreement, which states that it “may be modified only with the written agreement of the Parties.”
Blanche acknowledged during the hearing that, without a written change to the agreement, the anti-weaponization fund could still be revived.
“That’s what we’re trying to get them to agree to, which is again what his sworn testimony was,” Cornyn said. “So I don’t know why they’re so reluctant to do that.”
The White House and Justice Department did not immediately respond to requests for comment.
Jordain Carney contributed to this report.
Jay Clayton is on the verge of becoming President Donald Trump’s next director of national intelligence — though Democrats won’t be helping him get there.
The news: The Senate on Monday voted 51-43 in a party line vote to move forward with Clayton’s nomination, teeing up a final vote as soon as Tuesday to confirm him as the next head of the Office of the Director of National Intelligence. No Democrats joined their GOP counterparts in support of Clayton.
Clayton, the top prosecutor in the Manhattan U.S. attorney’s office and a former SEC chair, will take over from acting spy czar Bill Pulte and join Trump’s Cabinet when he’s confirmed by the full Senate.
Why it matters: At some level, that’s a win for Democrats, who have been eager to replace Pulte, a Trump loyalist with no background in national security, since the president named him to the post last month. But after an up-and-down confirmation process for Clayton, Democrats have new reservations about the incoming intel adviser, as Monday’s vote underscored.
During his Senate confirmation hearing two weeks ago, Clayton refused to say that Joe Biden fairly won the 2020 vote, leading Democrats on the Senate Intelligence Panel to vote against his nomination. That marked a reversal from June, when Senate Democrats worked with their GOP counterparts to fast-track Clayton’s confirmation in exchange for renewing a powerful spy law. That deal fell apart after Trump intervened, alleging on social media that Democrats weren’t delivering on their end of the deal.
Open question: Though Clayton’s confirmation now looks imminent, Senate action on the spy statute that was supposed to be part of the deal — Section 702 of the Foreign Intelligence Surveillance Act — is not.
With the House already gone for the August recess, the Senate appears unlikely to vote on Section 702 until September.
Nvidia CEO Jensen Huang will meet with lawmakers in Washington to discuss American leadership on artificial intelligence, the company said Monday.
A spokesperson for the chipmaker said Huang would hold talks with both Republicans and Democrats on Capitol Hill to talk about latest developments with the technology.
“Jensen is in DC to meet with leaders on both sides of the aisle to discuss American leadership in AI, including leading in open source,” the spokesperson said.
Huang is scheduled to sit down Tuesday with Sen. Mark Warner, the top Democrat on the Senate Intelligence Committee who has expressed serious concern about security threats following last week’s OpenAI autonomous cyberattack.
The senator’s office confirmed the meeting. Senate Intelligence Chair Tom Cotton (R-Ark.) did not immediately respond to a request for comment.
It comes as Huang defended open-source AI on X, writing that such models “strengthen safety and cybersecurity, accelerate innovation and diffusion, and enable sovereignty.”
Huang’s visit comes as OpenAI CEO Sam Altman is also expected to meet with Warner, although a spokesperson for the senator said the talks were separate. Earlier Monday, Open AI announced it was in talks with Nvidia, a technology company that makes chips to use artificial intelligence, for a data center project.
The White House did not immediately respond to a request for comment.
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