Politics should not be political
By 
There are days when I’m embarrassed to be part of legal academia at all, and this is one of them:
In January 2024, Judge Wynn announced that he would take senior status upon the confirmation of his successor. President Biden nominated Ryan Park, the North Carolina Solicitor General. I flagged that pick at the time, noting that Park was apparently rewarded for losing SFFA v. UNC with a circuit court nomination. I had written about Park way back in 2015. He consistently tells people he clerked for Justices Ginsburg and Souter. But the reality is he was hired by Justice Souter, and was detailed to RBG. It is such bad form to trivialize the hiring Justice.
Well, Park would never receive a floor vote. And he was not part of the “Deal” in which the Republicans allowed votes on several District Court nominees if pending Circuit Court nominees from Tennessee and North Carolina would remain unfilled. Of course, the rub of that deal is that the judges in those two states–Judge James Wynn and Judge Jane Stranch–may withdraw their senior status. These two judges were extra bargaining chips that Senator Schumer kept in his back pocket.
On December 13, like clockwork, Judge Wynn wrote to President Biden:
I write to advise that, after careful consideration, I have decided to continue in regular active service as a United States Circuit Judge for the Fourth Circuit. As a result of that decision, I respectfully withdraw my letter to you of January 5, 2024. I apologize for any inconvenience I may have caused.
Did Judge Wynn avoid the appearance of partiality? No, he did the exact opposite. Was something other than law afoot? Absolutely. Here, it is fairly clear that the law cuts one way (a judge can rescind senior status) but reality cuts the other (only a partisan would do so after his preferred candidate loses the election).
Senator Tom Tillis of North Carolina states the issue plainly:
“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,” Tillis said in a news release Saturday. “Judge Wynn clearly takes issue with the fact that Donald Trump was just elected President, and this decision is a slap in the face to the U.S. Senate, which came to a bipartisan agreement to hold off on confirming his replacement until the next Congress is sworn-in in January.
For all the faux outrage about judicial ethics with Justices Alito and Thomas, there will only be crickets on the left about Judge Wynn. Which proves that the outrage is merely performative–except judges still get death threats.
That’s an actual tenured law professor everybody!
(1) Expecting a federal judge to decide cases non-politically is exactly the same as expecting, say, the head of the EPA to decide matters before the agency non-politically. It’s not that it’s an unrealistic aspiration: it’s that it’s an oxymoron. You can’t decide political disputes in a non-political way, although the function of traditional legal education in this country has always been to confuse people enough to the point where they believe, or sort of believe, or pretend to themselves to believe, that this impossible thing is possible.
(2) Complaints about Thomas’s and Alito’s judicial ethics have been focused on the fact that Thomas takes bribes, which is bad, and that Alito supported Donald Trump’s attempt to overthrow the government, which was also bad. A judge changing his mind about retiring because circumstances have made it impossible for him to be replaced by a like-minded judge is not a form of misconduct: it’s a form of minimally responsible behavior on the part of the judge.
Speaking of partisan politics, check this out:
Representative Jared Moskowitz, a Florida Democrat, is among President-elect Donald Trump‘s picks to lead the Federal Emergency Management Agency (FEMA), CNN reported on Monday.
CNN reported that Moskowitz, a moderate who represents parts of south Florida in Congress, is in the mix to lead the agency, citing “two people with knowledge of the president-elect’s consideration” Monday afternoon. The report could not be independently verified by Newsweek, which reached out to the Trump-Vance transition team, as well as Moskowitz’s office, for comment.
You don’t need a weatherman to know which way the wind blows:
Moskowitz has been critical of Trump in the past, even holding up a photograph of him with sex offender Jeffrey Epstein during a congressional hearing in January.
He also said he would join the Trump-backed Department of Government Efficiency (DOGE) caucus when the new Congress convenes next year. He also offered praise to Susie Wiles after Trump named her his chief of staff, describing her as “brilliant, tough [and] strategic.”
The reason this matters:
David Mark, managing editor of the Washington Examiner: “Moskowitz, representing the coastal Fort Lauderdale area FL23, won reelection in 2024 by a 52.3% to 47.7% margin. So, this would be a potential Republican pickup opportunity in a special election.”
Mia Camille McCarthy, a reporter for Politico: “I asked Moskowitz last week if he would accept FEMA director under Trump. He said he wasn’t going to engage. Then he came back to me to tell me he only says that because it should stay a nonpartisan job: ‘A Democrat shouldn’t be ruled out for that job it’s a nonpartisan job.'”
I dunno, being Donald Trump’s errand boy during hurricane season (stock up on sharpies now!) doesn’t seem real nonpartisan to me, but I guess I can’t distinguish the balls from the strikes.
In any event, with the GOP margin in the House a razor thin five seats even prior to any special elections to fill positions vacated by cabinet appointments, Moskowitz’s . . . what’s the word I’m looking for here . . . oh yeah shamelessopportunism, is a really bad thing. Like taking bribes and supporting insurrections.