Trump poised to reshape NC federal courts more in his second term than his first

Across his entire first term in office, President Donald Trump appointed just two judges to federal district court seats in North Carolina and only one to the Fourth Circuit Court of Appeals, which includes North Carolina.

On his first day in office next month, he could have the opportunity to nominate almost twice that total, with four lower court vacancies and one court of appeals vacancy.

But that number comes with a caveat: three of those judgeships could cease to be vacant before the start of Trump’s term. Those three vacancies — two in the Middle District of North Carolina and the one on the Fourth Circuit — are the result of judges announcing their plans to take senior status, a form of semi-retirement in which judges take a reduced caseload while vacating their full-time seats.

Until that actually happens, though, judges may rescind their decision — an option Judge Max Cogburn Jr., the only judge on the Western District of North Carolina appointed by a Democratic president, exercised last month. He joined an Ohio district judge, Algenon Marbley, who did the same on Nov. 8. Both have met strident criticism from conservative legal circles and Senate Republicans.

As the next chapter in the battle over the nation’s judiciary takes shape, legal observers are keeping their eyes on North Carolina to see how the remaining vacancies unfold.

‘Substantial change’ to North Carolina’s judiciary

Cogburn’s decision to remain on the bench was not the only senior status decision in the North Carolina judiciary immediately following the election. Judge Frank Whitney, a George W. Bush appointee, opted to take senior status last month, with the transition taking effect December 1.

Whitney’s decision along with the vacancy created in 2023 when Judge Robert Conrad took senior status (Conrad was subsequently appointed head of the U.S. Administrative Office of the Courts), means that despite Cogburn’s reversal, Trump will still have the opportunity to fill two seats in the Western District of North Carolina. Both were vacated at the beginning of December, ensuring they will remain open at the start of Trump’s second term. Combined with Judge Kenneth Bell, who he named in 2019, that will give him a majority of the appointees on a court that has retained a conservative majority since the Reagan administration.

The two Middle District judges set to take senior status, Chief Judge Catherine Eagles and Judge Loretta Copeland Biggs, have until Dec. 31 to decide whether they will reverse their plans, at which point their senior status will take effect if nothing changes. That court is evenly split between Obama and George W. Bush appointees at present; should Eagles and Biggs follow through on their plans to take senior status, all four judges will have been appointed by Republican presidents.

“You’re talking about half of the active complement, and these judges will serve, I assume, for a considerable period because they’re likely to be younger than the people they are replacing — substantially younger,” said Carl Tobias, a law professor at the University of Richmond. “There could be substantial change in both of those courts depending on the people selected.”

A decision by Judge James Wynn Jr., the Fourth Circuit judge set to take senior status, could take longer — his decision to take senior status was conditional on a successor being confirmed — though Tobias said it was unlikely he would wait until after Jan. 20 to decide, as Trump could nominate a new successor at that point.

Unlike the other judges set to take senior status, Wynn had a successor nominated by the Biden administration whose confirmation was stalled by Senate Republicans. Ryan Park, the Solicitor General for North Carolina, was part of a deal between Republicans and Democrats to advance an array of district court nominees to the floor while putting up a white flag on four circuit court nominees who Republicans said lacked the votes to be confirmed.

The decisions handled by these courts can have national implications. The Supreme Court decision in Students for Fair Admissions v. University of North Carolina that ended affirmative action in public universities around the country began its life in the Middle District of North Carolina, where Trump may make two appointments in the coming year. While the Supreme Court holds final review in all cases it takes up, the factual determinations made in the lower courts can have substantial influence over the final result.

A surge in political retirement tactics

Should Wynn reverse his decision to retire, it would be without direct precedent — no circuit court judge has rescinded their decision to retire during a president’s lame duck period. But it would follow a trend toward more apparent political strategy around judges’ retirement decisions, to ensure a successor with similar ideological views.

“That’s becoming more common,” said University of Virginia law professor Xiao Wang. “This thing that we’re seeing — politically strategic retirement or politically strategic senior status decisions — that wasn’t really a big thing in the early 2000s.”

With each presidential term, Wang said, retirements have become more political. In an article for the Minnesota Law Review, he found that as recently as the Clinton administration, the number of judges appointed by presidents from each party taking senior status were roughly parallel. But under George W. Bush, more than 70% of judges going senior were Republican appointees, and more than 80% of those who did so under Trump were the same. As of 2023, about 65% of senior status judges under Biden were Democrats.

He pointed to the greater influence of interest groups like the Federalist Society and the American Constitution Society in judicial selection as well as the rise in highly contentious nomination fights as factors that may be driving the increase in politicized retirement decisions.

Judge Michael Kanne, a Seventh Circuit Reagan appointee, revoked his decision to take senior status after learning his former clerk, Indiana Solicitor General Tom Fisher, would not be appointed to the seat. Kanne died in 2022 and was succeeded by Biden appointee Judge Joshua Kolar.

Similarly, Judge Robert King, a Clinton appointee on the Fourth Circuit, rescinded his decision to take senior status when Biden decided he would not name King’s preferred successor, reportedly former West Virginia Senator Carte Goodwin.

These conditional decisions to take senior status — including those taken by Wynn and Sixth Circuit Judge Jane Branstetter Stranch — are themselves a recent development. In the past, judges would take senior status and immediately vacate their active positions, even if they continued to hear a full set of cases. But now, it is more common for judges like Kanne and King to signal their willingness to take senior status while retaining their active seats to have greater influence over who their successors will be.

“Some active judges are doing more than just using their senior status decisions in a politically strategic manner,” Wang wrote in 2023. “They are dangling the prospect of senior status to shape and pack courts in exactly the way that they want them to look.”

‘Play political games, expect political prizes’

In a speech on the Senate floor on Dec. 2, Senate Minority Leader Mitch McConnell (R-Ky.) condemned the two district judges who reversed their senior status decisions — and warned their counterparts of consequences for doing the same.

“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. “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.”

He said should either of the circuit court judges set to take senior status reverse their plans, they would merit “significant ethics complaints” and “serial recusal demands from the Department of Justice.”

“Never before has a circuit judge unretired after a presidential election. 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 said. “As I have repeatedly warned the judiciary in other matters, if you play political games, expect political prizes.”

In response, Senate Judiciary Chair Dick Durbin (D-Ill.) pointed to McConnell’s own role in politicizing the judiciary when he refused to hold a confirmation hearing for Supreme Court nominee Merrick Garland for the final 11 months of President Barack Obama’s term — ultimately allowing Trump to nominate Neil Gorsuch in his stead.

“When I hear the senator come to the floor from Kentucky and talk about whether there’s any gamesmanship going on, I don’t know,” Durbin said. “But I will tell you that we saw it at the highest possible level in filling the vacancy on the Supreme Court when Antonin Scalia passed away.”

Tobias, the University of Richmond federal judiciary expert, said he did not put much stock in McConnell’s threats, which he called “rhetorical flourishes.” He said it was unlikely that Wynn or Stranch would be moved by Republican vows to go after them with ethics complaints, noting the high bar for such violations in the federal judiciary.

The future of North Carolina’s federal judiciary

Around the country, North Carolina is the exception, rather than the norm, in terms of Trump’s upcoming influence on the judiciary. That’s because the first Trump and Biden administrations were so successful at appointing judges en masse, according to Professor Wang.

In his first term, Trump set a record in judicial appointments, naming 234 judges to the federal bench. Biden is expected to break that record with 235 judges before the close of the 118th Congress — though he will fall two short of Trump’s number of appointments on the nation’s highest court.

Because so many judgeships have been filled over the last eight years, and with nominees who were much younger on average than those of decades past, there are relatively few posts left to fill. Trump inherited 108 vacancies in the federal judiciary in 2017. Next year, he will come into office with less than half that ttal, with an expected 45 remaining vacancies.

“His presidency might not have the same national footprint that he had eight years ago, but it could certainly have regional footprints and regional variation where he could help shape the makeup of the judges,” Wang said. “It sounds like North Carolina certainly is one of them.”

Tobias said to watch North Carolina Republican Senator Thom Tillis in the coming months to see who might fill the high number of vacancies in North Carolina. Tillis and his fellow Republican Ted Budd will have the final say over which nominees from the Tar Heel state move forward under the Senate’s “blue slip” system, and given Tillis’s role on the Senate Judiciary Committee, he will likely take the lead on those selections.

Tillis is also the primary reason those vacancies remain open — after the nomination of Park for the Fourth Circuit, whom he vehemently opposed, Tillis refused to negotiate with the Biden administration on the state’s lower court vacancies.

One potential name to keep an eye on, should his challenge to the state Supreme Court election fail: Judge Jefferson Griffin, whose nine years of judicial experience, conservative legal views, and relatively young age might make him an attractive name for the lower or circuit court vacancies.

Tobias said Republican-appointed district court judges in the state would also likely be under consideration for the circuit court vacancy. The youngest of those judges is Chief Judge Richard Myers II, 57, who Trump named to the Eastern District of North Carolina in 2019.