4th Circuit judge to maintain active status, eliminating vacancy for Biden

  • U.S. Circuit Judge Robert King backtracked on plans to take senior status
  • Expert calls reversal "unusual" but not unprecedented

(Reuters) - U.S. Circuit Judge Robert King on Wednesday told the White House he had changed his mind about stepping down from active service on the 4th U.S. Circuit Court of Appeals, eliminating a vacancy President Joe Biden could fill.

King, an appointee of former Democratic President Bill Clinton who has served on the Richmond, Virginia-based appeals court since 1998, said in August he would take senior status on the confirmation of a successor.

But in a letter reviewed by Reuters, King, 81, advised Biden that, "after careful consideration, I have decided to continue for the foreseeable future in regular active service" and would withdraw his earlier Aug. 23 letter to the White House.

"I apologize for any inconvenience I may have caused," King wrote.

It was unclear why King changed his plans. A clerk for the West Virginia judge confirmed he was no longer planning to take senior status but had no further comment. King did not respond to a request for comment.

The 4th Circuit hears appeals from Virginia, Maryland, West Virginia, North Carolina and South Carolina. The court has nine active Democrat-appointed judges, including King, and six Republican-appointed judges.

Biden has nominated just one judge so far to the court, Toby Heytens, whom the Senate confirmed in November.

King's letter indicated he sent copies to West Virginia's Democratic Senator Joe Manchin and Republican Senator Shelley Moore Capito. Senators are often involved in recommending judicial nominees to fill vacancies in their states.

Representatives for Manchin and Capito did not respond to requests for comment.

John Collins, a law professor at George Washington University who studies the judiciary, said the decision by a judge to reverse course on taking senior status is "not unprecedented, but it is unusual."

He said it was possible an issue emerged with his replacement, something that occurred in 2018 when U.S. Circuit Judge Michael Kanne of the 7th U.S. Circuit Court of Appeals similarly changed his plans.

Kanne had planned to take senior status contingent on an ex-clerk, Indiana Solicitor General Tom Fisher, being nominated to take his place.

But then-Vice President Mike Pence, the former governor of Indiana, opposed the pick, and President Donald Trump did not nominate him, prompting Kanne to rescind his decision to assume senior status.

Read more:

New 4th Circuit vacancy opens, as WV-based judge takes senior status

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Nate Raymond reports on the federal judiciary and litigation. He can be reached at nate.raymond@thomsonreuters.com.