By Nate Raymond
Nov 29 (Reuters) - For the second time since Republican President-elect Donald Trump's election, a federal judge has revoked his decision to take senior status after it was clear that Democratic President Joe Biden had run out of time to fill his seat.
U.S. District Judge Max Cogburn, an appointee of Democratic former President Barack Obama in Asheville, North Carolina, had announced in 2022 that he planned to take senior status, a form of semi-retirement, upon the confirmation of a successor.
But Biden never nominated anyone to fill that seat, and this week Cogburn's name disappeared from the federal judiciary's official list of judges who planned to vacate their seats at future dates.
James Ishida, the circuit executive for the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals, told Reuters late Wednesday that Cogburn had decided to remain in active service and sent the White House a letter to that effect.
The 4th Circuit has jurisdiction over Cogburn's court, the U.S. District Court for the Western District of North Carolina.
Cogburn's reversal came after another jurist, U.S. District Judge Algenon Marbley, in Columbus, Ohio, withdrew his own plans to take senior status just days after Trump emerged as the victor in the Nov. 5 election. Marbley is an appointee of Democratic former President Bill Clinton.
Cogburn, 73, and the White House did not respond to requests for comment.
Senior status is available to judges over the age of 65 who have completed at least 15 years on the federal bench. Senior judges typically have reduced caseloads but continue to hear cases, including new ones, without formally retiring. Presidents may name new full-time judges to fill those judges' seats.
Research shows that judges have over the last two decades increasingly timed their decisions to take senior status for when the White House is occupied by a president of the same party that appointed them.
Cogburn's reversal was disclosed the same day the judiciary said one of his fellow jurists in the Western District of North Carolina, U.S. District Judge Frank Whitney, had elected to take senior status, effective Sunday.
Whitney is an appointee of Republican former President George W. Bush and one of the first judges since Trump's election to announce plans to take senior status.
Cogburn joined the federal bench in 2011. His notable decisions include a 2014 ruling striking down North Carolina's gay marriage ban.
Any nominee Biden might have picked to fill Cogburn's seat would have needed the blessing of North Carolina's two Republican senators, including Senator Thom Tillis, a member of the Senate Judiciary Committee, thanks to the U.S. Senate's "blue slip" custom.
Tillis had been critical of how the White House went about selecting a nominee to fill a North Carolina seat on the 4th Circuit, Ryan Park, whose nomination is no longer expected to receive a floor vote following a bipartisan lame-duck deal on judicial nominations announced last week.
Biden's inability to fill Cogburn's seat resulted in a missed opportunity for the Democrat president to extend his efforts to diversify the federal bench to the Western District of North Carolina, which has never had a woman or person of color serve as a life-tenured judge before.
Tillis' office did not respond to a request for comment. But he has said it would be "partisan politics" for judges who submitted retirements to reverse their decisions now.
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(Reporting by Nate Raymond in Boston)
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