WASHINGTON – The Article III Project (A3P) filed formal complaints with the Judicial Councils of the Fourth and Sixth Circuits, urging investigations into potential judicial misconduct by U.S. District Judges Max O. Cogburn, Jr., of the Western District of North Carolina, and Algenon L. Marbley, of the Southern District of Ohio. The complaints call for an inquiry into the judges’ decisions to rescind their previously announced intentions to assume senior status after President Donald Trump won the 2024 election, which may violate the Code of Conduct for United States Judges.

Both judges, appointed by Democrat presidents, initially stated their intention to step down upon the confirmation of their successors. After the election of Donald Trump in November, however, both judges withdrew their senior status announcements.

Judge Cogburn, who had announced his intention to retire in February 2022, rescinded his decision shortly after the election. Similarly, Judge Marbley, who made his announcement in October 2023, withdrew his request to assume senior status just two days after the election results were confirmed.

“Rescinding a retirement or senior-status decision is highly unusual. One study found that from 2007 to 2022, there had been around 750 Article III judicial appointments, during which time only two judges withdrew conditional retirement or senior-status letters. Neither were because of the outcome of any partisan election. A third judge, however, while technically not ‘withdrawing’ his announcement, had labeled it as valid only if his replacement were appointed before the end of President George W. Bush’s second term—a condition that stirred controversy,” said the complaints.

“No federal appellate judge has ever rescinded a retirement or senior-status letter after a presidential election. Indeed, they have long stood by their announcements of intent to retire or take senior status despite electoral outcomes. Most famously, in 1968, Chief Justice Earl Warren announced his intention to retire upon the confirmation of his successor, but President Lyndon Johnson’s nominee (Justice Abe Fortas) was not confirmed before Richard Nixon was inaugurated in January 1969. Chief Justice Warren stood by his retirement announcement, however, and was replaced by President Nixon’s nominee, Warren Burger,” the complaints continued.

“Perhaps [the judges have] legitimate reasons for withdrawing [their] senior-status letter[s]. But on the public record as it currently exists, every indication is that [they] had a change of heart solely because of the outcome of the 2024 presidential election. If that is proven, it would violate several Canons of the Code of Conduct of United States Judges,” the complaint concluded.

The Article III Project (A3P) was founded by veteran GOP operative and attorney Mike Davis, who, after helping win the Senate confirmation battles of Neil Gorsuch and Brett Kavanaugh, developed the reputation as a “take-no-prisoners conservative eager to challenge the left with hardball tactics,” as reported in The New York Times.‍‍

A3P defends constitutionalist judges, punches back on radical assaults on judicial independence (like court-packing) and opposes judicial and other nominees who are outside of the mainstream. Davis previously served as Chief Counsel for Nominations to Chairman Chuck Grassley (R-Iowa) on the United States Senate Committee on the Judiciary and led the Senate confirmation of Justice Brett Kavanaugh and a record number of circuit court judges.

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