5th Circuit's Costa to resign, giving Biden second vacancy to fill

A view of the judge's chair in court room 422 of the New York Supreme Court
  • Circuit Judge Gregg Costa, an Obama appointee, to resign Aug. 5
  • Resignation creates second vacancy on 5th Circuit

(Reuters) - U.S. Circuit Judge Gregg Costa, one of the few Democratic appointees on the conservative 5th U.S. Circuit Court of Appeals, plans to resign in August, giving President Joe Biden a second vacancy to fill on the New Orleans-based appellate court.

The news, disclosed on a federal judiciary vacancies list on Thursday, came as a surprise to court watchers. Costa, 49, is far from retirement age and was only confirmed to the court in 2014 following his nomination by President Barack Obama.

Costa, who is from Texas, did not immediately respond to requests for comment.

Judge Gregg Costa. Photo courtesy of the 5th U.S. Circuit Court of Appeals

John Collins, a law professor at George Washington University, in an email said that by his count, only four circuit judges nationally have resigned since 2005 before reaching the retirement age of 65.

"Whatever the reason, it's important that the White House move quickly to fill this seat, and that it doesn't let obstructionists like Ted Cruz or John Cornyn get in the way," he said, referring to Texas' two Republican senators.

Both historically would have had some sway over who Biden could nominate to fill a traditionally Texas-held seat on the court, which also hears cases from Louisiana and Mississippi.

But Senate Democrats have continued a practice Republicans adopted during the Trump era of not following the traditional "blue slip" process that gave home state senators a say over circuit picks.

Another 5th Circuit judge, U.S. Circuit Judge James Dennis, has said he plans to take senior status, a form of semi-retirement. Biden has yet to nominate anyone to replace Dennis, who was appointed by President Bill Clinton.

Costa, who clerked for former U.S. Supreme Court Chief Justice William Rehnquist, had before joining the 5th Circuit served as a federal prosecutor and a district court judge in Houston.

He is considered a moderate-to-liberal member of the 5th Circuit, whose 17 active judges include 12 Republican appointees.

His recent rulings included a Dec. 15 unsigned decision in which Costa joined with two other judges to revive in 26 states a Biden administration mandate requiring millions of healthcare workers to get vaccinated.

In September, Costa wrote for a three-member panel that overturned a judge's decision to issue a nationwide injunction blocking Biden administration policies limiting who can be arrested by U.S. immigration authorities.

Republican attorney generals from Texas and Louisiana have asked the full 5th Circuit to reconsider that ruling.

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