Judge Wynn’s Resignation

 

In January 2024, Judge James Andrew Wynn, Jr (4th Circuit) decided to take senior status. The Biden administration nominated Ryan Young Park, the Solicitor General of North Carolina, to succeed Wynn. A few days ago, the Biden administration withdrew the Park nomination. Now, about a month before the start of the new administration, Judge Wynn has rescinded his decision to step down from active status.

 

In 2020, the Fourth Circuit ruled against Trump-45 in an en banc proceeding in one of the Emoluments Clauses cases. See In re Donald J. Trump (DC & MD v. Trump), No. 18-2486, 958 F.3d 274 (4th Cir. May 14, 2020) (en banc) (denying mandamus relief in a 9-to-6 decision) (official capacity), Dkt. No. 100, 2020 WL 2485573, 2020 WL 2479139, <https://assets.documentcloud.org/documents/6890090/Trump-Emoluments-ca4-2020-05-14.pdf>, <https://www.ca4.uscourts.gov/opinions/182486A.P.pdf>. Judge Wynn filed a concurrence. See id. at 289. In that concurrence, Judge Wynn wrote:

 

Without a doubt, a lawsuit brought by the State of Maryland and the District of Columbia against the President of the United States catches attention outside the walls of the courthouse. How then should the Court avoid the appearance of partiality when there are eyes upon it? By applying the law and abstaining from grandiose screeds about partisan motives. Or, put another way—by doing its job. And that is exactly what the excellent majority opinion does.

But to the contrary, our dissenting colleague insinuates that “something other than law [is] afoot” here. First dissent at 308–09 (Wilkinson, J.). 

 

Id. (emphasis in the original). 

I don’t doubt Judge Wynn’s fine sentiments from his concurrence. I do not doubt that back in 2020, he sincerely believed what he had written. It is now 2024. And, in the future, I do not see how Wynn’s colleagues or the wider public would see his (again) stating such views in quite the same favourable light. If his having taken senior status was “doing [his] job,” then why has he rescinded? Should not his colleagues and the public see “partisan motives” on this occasion? Or, perhaps, Wynn recently suffered from a bout of unexpected good health and longevity?

 

Seth Barrett Tillman, ‘Judge Wynn’s Resignation,’ New Reform Club (Dec. 15, 2024, 3:05 AM), <https://reformclub.blogspot.com/2024/12/judge-wynns-resignation.html>; 

See generally Josh Blackman, ‘“Brazenly Partisan” Judge Wynn Withdraws Senior Status Because Trump,’ Reason–Volokh Conspiracy (Dec. 15, 2024, 4:40 PM), <https://reason.com/volokh/2024/12/15/brazenly-partisan-judge-wynn-withdraws-senior-status-because-trump/>; 

Note: I filed several amicus briefs in In re Donald Trump. See, e.g., Amicus Brief of Scholar Seth Barrett Tillman and the Judicial Education Project in Support of Respondent-Defendant, In re Donald J. Trump, President of the United States, in his official capacity, App. No. 18-2486 (4th Cir. Oct. 21, 2019) (en banc proceedings) (filed by Josh Blackman et al.), <https://ssrn.com/abstract=3450000> (refiling, per en banc court’s order, the Tillman and the Judicial Education Project’s brief we had previously sent to the original 3-judge circuit panel); Amicus Brief of Scholar Seth Barrett Tillman and the Judicial Education Project in Support of Petitioner, In re Donald J. Trump, in his official capacity, App. No. 18-2486 (4th Cir. Jan. 29, 2019) (filed by Josh Blackman et al.), ECF No. 28-1, 2019 WL 366219, <https://ssrn.com/abstract=3314703>.