The partisan gamesmanship over who gets to appoint judges is hardly new

After 22 years as a United States district judge and five years as a magistrate judge, I made the difficult decision in 2016 to retire from the bench. It was important to me that I leave while still at the top of my game and able to have a “third act,” so to speak. As for my colleagues who choose to retire, some have found that the work is simply not what they want to do every day for the rest of their lives. I recall one judge who left the bench after only a few years because, he said, he didn’t take the job to sentence low-income drug offenders and desperate immigrants. He left to work in the health care field, which he found far more satisfying.

Another felt that judging didn’t challenge him in the way building a law firm from scratch would. Yet another left and built one of the most successful alternative dispute resolution practices in the country. At least four judges I know left to take full-time or part-time academic appointments. Finally, several judges who left the bench were appointed to other high-ranking positions in state or federal government. I don’t know any judge who retired due to the burdens of the caseload they carried.

I had been in government service almost my entire career and felt it was time for a change. I am now engaged as an arbitrator and mediator, and also have been given special master assignments by various courts. This work has been satisfying. It is a new challenge and a stimulating change.

After last month’s presidential election, a number of judges who had announced their intent to retire when a successor was chosen withdrew their decisions. Those judges have been roundly accused by some Republicans, including Sen. Mitch McConnell, R-Ky., of playing partisan politics because if they remain on the bench until the next president is elected, they will have denied President-elect Donald Trump the opportunity to select their successors.

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That complaint is rich coming from McConnell! The Republican-controlled U.S. Senate, which was then led by McConnell, denied President Barack Obama the right to choose the successor to Justice Antonin Scalia, even though he was just beginning his final year as president. As everyone knows, that was a raw exercise of partisanship by McConnell, who simply refused to process Obama’s selection of Merrick Garland. McConnell said it was too close to a presidential election and the appointment should await the outcome.

But then Justice Ruth Bader Ginsburg died at the end of Trump’s term, with only weeks remaining before the election in which he was running for a second term. Did McConnell still believe it was too close to a presidential election to hold hearings for a Supreme Court justice nominee? No. McConnell and the Republicans he led rushed through Amy Coney Barrett’s confirmation process at record speed. Trump lost the election, but McConnell had made sure that President Joe Biden wouldn’t get to make that appointment to the Supreme Court. That is why the current court gained a 6-3 (and not a 5-4) conservative majority.

The current outcry over would-be retiring judges changing their minds is yet another example of partisan gamesmanship. Here’s what really happened: A bipartisan bill creating 66 much needed new judgeships over a 10-year-period passed in the Democratic-controlled Senate in August, but, in what was an obvious attempt to see who would win the election in November, the Republican-controlled House took no action. Then, on Dec. 12, a month after Trump won, the House passed the bill.

The New York Times reported Thursday that “677 district court judges are the front line of the federal judiciary, handling most of the nearly 400,000 civil and criminal cases that pass through the system each year” and that the Administrative Office of the U.S. Courts this year counted 81,617 civil cases that have been pending more than three years. That’s more than four times the number there were 20 years ago.

Despite the desperate need for new judgeships, Biden has said he’ll veto the bill that has now passed the House and Senate and thereby deny Trump the chance to appoint a slew of new judges who undoubtedly will be very conservative picks. If Biden were to sign the bill, then he’d be giving Trump the power to appoint an additional 22 judges in addition to filling current and expected vacancies, particularly on the powerful circuit courts of appeals, where Biden’s final four picks were denied a Senate vote.

It was the Republican House that played politics with the bipartisan bill when it held off voting to approve the new judgeships until its members could see who would be making the appointments.

It is against this backdrop that one should think about federal judges who have decided to rescind their announced plans to resign. It would be disingenuous to claim their change of heart wasn’t affected by the results of the election. They don’t want their seats to go to highly partisan “Trump” judges — like, for example, U.S. District Judge Matthew Kacsmaryk in Texas, who tried unsuccessfully to outlaw the use of the abortion pill.

Is it wrong of these judges to take this into account when deciding to retire from the bench? Not in my opinion, but you be the judge. That is, after you consider the full context of the role partisan politics plays and has played in the selection of federal judges.