1. Home
2. Daily News
3. Insurance case is ‘but a speck in the recesses…

Judiciary

Insurance case is ‘but a speck in the recesses of interstellar space,’ high-profile appeals judge writes

By Debra Cassens Weiss

April 28, 2025, 3:07 pm CDT

In a span of less than a week, a conservative federal appeals judge has written two opinions that are getting attention—for taking a tough stand against the mistaken deportation of an immigrant in one case and for waxing philosophical in another case.

In an April 17 opinion, Judge J. Harvie Wilkinson III took the Trump administration to task for “asserting a right to stash away residents of this country in foreign prisons without the semblance of due process.”

Wilkinson wrote the “blistering” opinion for the 4th U.S. Circuit Court of Appeals at Richmond, Virginia, in the case of Kilmar Armando Abrego Garcia of Maryland, according to the New York Times.

Abrego Garcia was deported to a prison in El Salvador in Central America because of an “administrative error.” The case is Abrego Garcia v. Noem.

Now, Wilkinson is getting attention once again for an April 23 opinion in an insurance dispute involving a man on a lawn mower struck and killed by an underinsured motorist, according to Above the Law and the Judicial Notice newsletter at Original Jurisdiction.

The 4th Circuit held that the man’s estate was entitled to $150,000 under the plain terms of the man’s underinsured motorist coverage—and nothing more.

Wilkinson engaged in “existential, metaphysical musings” at the end of his opinion, according to Judicial Notice.

Here is what Wilkinson wrote: “What after all does it matter? A single, seemingly ordinary, rather technical insurance case. One among the many hundreds of rulings judges make each year.

“What does it matter? A case but a speck in the recesses of interstellar space and in the four-plus billion years since our solar system’s birth. What does it matter, this case deserted by both space and time?

“To be human is to live in the here and now. This small case extracts courageous meaning from the vast impersonality in which it resides. Its immediacy confounds infinity; its passions light the dark. We have given it our best; the litigants have given it their best. The trial court has done the same. We do not overlook for a moment the tragic passing of the insured but neither can we ignore the contract under South Carolina law that defines the insurer’s obligation.”

The insurance case is Owners Insurance Co. v. Walsh.

Wilkinson, 80, was appointed to the 4th Circuit by former President Ronald Reagan, the New York Times reports in a story about his background. He is the “son of a patrician Virginia banker,” an Army veteran and a law grad of the University of Virginia.

He delayed his legal education after one year to unsuccessfully run for Congress in 1970 as a Republican. After law school, he worked as a law professor and in the U.S. Department of Justice.

On the bench, the New York Times reports, Wilkinson has “a long track record of conservative rulings under his belt, having criticized rulings establishing abortion rights while writing approvingly of a broad conception of presidential power.”

Write a letter to the editor, share a story tip or update, or report an error.

1. Home
2. Daily News
3. Which firms, legal groups, law profs signed…

Law Firms

Which firms, legal groups, law profs signed briefs supporting Perkins Coie in challenge to punitive Trump order?

By Debra Cassens Weiss

April 8, 2025, 8:52 am CDT

Amicus briefs supporting Perkins Coie are piling up in its challenge to a punitive order against the law firm signed by President Donald Trump.

The briefs have been filed by more than 500 firms, more than 360 law professors, nearly 350 former judges and a “cross-ideological group” that includes the American Civil Liberties Union and the Institute for Justice, a nonprofit public interest firm, report Law.com (here and here); Bloomberg Law; Reuters (here and here); Law360; and press releases by Law Forward, a nonprofit organization, and the ACLU.

The firm brief is mostly signed by smaller and midsize firms. According to Law.com, larger and well-known firms that signed are:

  • Arnold & Porter Kaye Scholer

  • Covington & Burling

  • Crowell & Moring

  • Davis Wright Tremaine

  • Fenwick & West

  • Foley Hoag

  • Freshfields US

  • Hanson Bridgett

  • Jenner & Block

  • Manatt, Phelps & Phillips

  • Munger, Tolles & Olson

  • Patterson Belknap Webb & Tyler

  • Stoel Rives

  • Susman Godfrey

  • Wilmer Cutler Pickering Hale and Dorr

Perkins Coie sued after Trump issued an executive order that suspended Perkins Coie’s security clearance, limited access to federal buildings by its lawyers, blocked government hiring of firm employees, and required federal agencies to take steps to terminate contracts with the firms and their clients—if the firm provided services in connection with the client contract.

WilmerHale and Jenner & Block also sued after they were targeted with executive orders. Covington & Burling was also targeted in a more limited executive order; it has not filed suit.

As of April 3, four other firms reached deals with Trump to avoid punitive measures. The deals included pledges of pro bono support on issues supported by Trump and the firms.

A Perkins Coie spokesperson told Reuters that the firm was grateful to the firms that signed the amicus brief “in our challenge to the unconstitutional executive order and the threat it poses to the rule of law.”

Above the Law is compiling firms’ reactions to actions by the Trump administration in its “BigLaw Spine Index.” Law.com has published a timeline of the executive orders and firms’ response to them.

The legal advocacy groups that signed the ACLU brief are:

  • The ACLU

  • The ACLU of the District of Columbia

  • The Cato Institute

  • The Electronic Frontier Foundation

  • The Foundation for Individual Rights and Expression

  • The Institute for Justice

  • The Knight First Amendment Institute at Columbia University

  • The National Coalition Against Censorship

  • The Reporters Committee for the Freedom of the Press

  • The Rutherford Institute

  • The Society for the Rule of Law Institute

Judges who signed an amicus brief include retired state supreme court and appellate justices and former federal judges. Among them are:

  • Retired Judge J. Michael Luttig of the 4th U.S. Circuit Court of Appeals at Richmond, Virginia

  • Retired Judge Diana Gribbon Motz of the 4th Circuit at Richmond, Virginia

  • Retired Judge Kathleen M. O’Malley of the U.S. Court of Appeals for the Federal Circuit

  • Retired Judge Thomas I. Vanaskie of the 3rd Circuit at Philadelphia

  • Retired U.S. District Judge Shira A. Scheindlin of the Southern District of New York

Law professors who signed the professor brief are from law schools that include Harvard Law School, Yale Law School, Stanford Law School, the University of California, the Georgetown University Law Center, the Northwestern University Pritzker School of Law, Cornell Law School, the New York University School of Law, the University of Chicago Law School, Columbia Law School and the University of Michigan Law School.

Professors who signed the brief include Michael C. Dorf of Cornell Law School, Mark A. Lemley of Stanford Law School, Owen Fiss of Yale Law School, Harold Hongju Koh of Yale Law School, Leah Litman of the University of Michigan Law School, Eugene Volokh of the University of California at Los Angeles School of Law and Pamela S. Karlan of Stanford Law School.

Write a letter to the editor, share a story tip or update, or report an error.

1. Home
2. Daily News
3. Third federal appeals court rejects Trump…

Constitutional Law

Third federal appeals court rejects Trump administration bid on birthright citizenship

By Debra Cassens Weiss

March 12, 2025, 12:05 pm CDT

The 1st U.S. Circuit Court of Appeals at Boston on Tuesday refused to allow President Donald Trump’s order on birthright citizenship to take effect, joining two other federal appeals courts that also ruled against the administration on the issue.

The 1st Circuit refused to stay pending appeal a federal judge’s Feb. 13 nationwide preliminary injunction blocking the order. The appeals court joined the 9th Circuit at San Francisco and the 4th Circuit at Richmond, Virginia, which issued similar rulings.

Law360, Reuters, the Associated Press and the Volokh Conspiracy covered the March 11 decision.

Trump’s Jan. 20 order bans birthright citizenship when a mother is in the country illegally or temporarily and when a father was not a U.S. citizen or a lawful permanent resident at the time.

U.S. District Judge Leo T. Sorokin of the District of Massachusetts had granted a preliminary injunction to 18 states that challenged the order, finding that they were likely to succeed in their argument that it violated the citizenship clause of the 14th Amendment. The District of Columbia and San Francisco were also plaintiffs.

On appeal, U.S. Department of Justice lawyers did not “make any developed argument” that the government was likely to succeed in showing that Trump’s order was constitutional, the 1st Circuit said. Instead, lawyers claimed that the plaintiffs did not have standing.

The states had countered that they had standing because the order would result in a loss of federal funds for health care, special needs education, child welfare and applications for Social Security numbers.

The 1st Circuit sided with the states, finding that the government had not made the strong showing needed to overcome state arguments.

1st Circuit Chief Judge David J. Barron, an appointee of former President Barack Obama, wrote the opinion in the case, New Jersey v. Trump.

New Jersey Attorney General Matt Platkin applauded the decision in a statement cited by Law360.

“Every court to consider President Trump’s effort to end birthright citizenship by executive order has found it is flagrantly unconstitutional, and every appellate court has rejected DOJ’s effort to put his order back in place,” Platkin said. “We are thrilled with the 1st Circuit’s decision, and we look forward to standing up for our birthright citizens no matter how far the Trump administration takes this case.”

Write a letter to the editor, share a story tip or update, or report an error.

1. Home
2. Daily News
3. Co-founder of defunct firm LeClairRyan may…

Law Firms

Co-founder of defunct firm LeClairRyan may be able to avoid tax liability after 4th Circuit decision on his exit

By Debra Cassens Weiss

February 12, 2025, 10:44 am CST

The co-founder and former CEO of the defunct law firm LeClairRyan may be able to avoid tax liability in connection with the firm’s collapse because of a ruling Friday by a federal appeals court.

The 4th U.S. Circuit Court of Appeals at Richmond, Virginia, ruled for former partner Gary LeClair in a Feb. 7 opinion, Law360 reports.

The Legal Profession Blog published highlights.

The 4th Circuit ruled that LeClairRyan’s operating agreement didn’t bar LeClair from withdrawing as a partner after a vote to dissolve in July 2019. Bankruptcy and federal courts had reached the opposite conclusion, which made LeClair liable for some tax obligations because he was considered a partner on the day that the firm filed for bankruptcy in September 2019.

The firm had included LeClair on a list of equity holders filed with the bankruptcy court. LeClair wanted to amend the list to remove his name.

The 4th Circuit remanded for a determination.

“We leave it to the bankruptcy court on remand to determine whether any equitable considerations warrant denial of the motion to amend despite LeClair’s correct interpretation of the operating agreement,” the appeals court said.

See also:

Too big too soon: How LeClairRyan went under

LeClairRyan bankruptcy trustee targets firm co-founder, compares firm to movie ‘Weekend at Bernie’s’

Write a letter to the editor, share a story tip or update, or report an error.

1. Home
2. Daily News
3. Who won election to top North Carolina court?…

Election Law

Who won election to top North Carolina court? Case belongs in state court, for now, 4th Circuit says

By Debra Cassens Weiss

February 5, 2025, 3:03 pm CST

A federal court shouldn’t decide lawsuits over a contested election for a seat on the North Carolina Supreme Court, at least not yet, the 4th U.S. Circuit Court of Appeals at Richmond, Virginia, ruled Tuesday.

The 4th Circuit ruled in consolidated appeals stemming from the race between the Democratic incumbent, Justice Allison Riggs, and her Republican challenger, North Carolina Court of Appeals Judge Jefferson Griffin.

Law360, the Associated Press, the New York Times and the News & Observer have coverage, while How Appealing linked to the per curiam, unpublished Feb. 4 opinion.

Riggs leads by 734 votes, but Griffin is questioning the counting of about 66,000 ballots, according to the AP. Griffin wants to throw out ballots in which voters did not prove identity with a driver’s license or partial Social Security number when they registered to vote. He is also seeking to toss overseas ballots, including those cast by voters who didn’t produce a photo ID with their absentee ballots.

Riggs and the North Carolina State Board of Elections wanted two cases filed by Griffin transferred to federal court.

“While Riggs and the State Board of Elections argued that his case implicated national election laws,” the News & Observer reports, “Griffin argued that it should be left to the jurisdiction of North Carolina courts—where Republican judges predominate.”

The New York Times reports that the case has “unsettled election experts and government watchdogs across the country, who say that overturning the election would undermine democracy and provide a blueprint for doing it again in the future.”

Judges on the 4th Circuit panel were Judge Paul V. Niemeyer, an appointee of former President George H.W. Bush; Judge Marvin Quattlebaum Jr., an appointee of President Donald Trump; and Judge Toby J. Heytens, an appointee of former President Joe Biden.

One case filed by Griffin asked the North Carolina Supreme Court to stop the elections board from counting challenged ballots. Another asked the superior court in Wake County, North Carolina, to review the elections board’s rulings against him.

The 4th Circuit ruled that Chief U.S. District Judge Richard E. Myers II was correct when he refused to assert federal jurisdiction. But Myers, a judge in the Eastern District of North Carolina, should have based his decision on the Pullman doctrine, the 4th Circuit said. That doctrine can be applied when there are unclear issues of state law that once resolved could moot federal constitutional issues.

Under the doctrine, the federal court retains jurisdiction of the federal constitutional claims, while state court issues are addressed in state court.

The 4th Circuit provided an example of how the federal case could become moot. If the elections board prevailed on state law issues, the resolution of federal claims may not be necessary, the appeals court said.

Another section of the opinion addressed Griffin’s writ of prohibition filed with the North Carolina Supreme Court, which dismissed the application Jan. 22. That sent the case back to state court in Wake County.

Because the appeal had asked the 4th Circuit to retrieve the case from the North Carolina Supreme Court, the issue is moot, the 4th Circuit said.

Write a letter to the editor, share a story tip or update, or report an error.

1. Home
2. Daily News
3. SCOTUS will decide whether schools can require…

U.S. Supreme Court

SCOTUS will decide whether schools can require LGBTQ-themed books at story time with no opt-outs

By Debra Cassens Weiss

January 21, 2025, 10:27 am CST

The U.S. Supreme Court on Friday agreed to decide whether schools can require teachers to read storybooks to elementary-age children with LGBTQ characters and themes over parents’ objections.

At issue is whether the required instruction with no possibility of opting out violates parents’ First Amendment right to free exercise of religion.

SCOTUSblog, the Washington Post, the New York Times, Reuters and the Volokh Conspiracy are among the publications with coverage of the cert grant in Mahmoud V. Taylor.

The SCOTUSblog case page is here.

One of the books, Pride Puppy, is about a puppy that gets lost during a gay pride parade, according to SCOTUSblog. Another, My Rainbow, is about a mother who makes a colorful wig for her transgender daughter.

Both books were removed from the curriculum after the lawsuit was filed, the Washington Post reported in October.

Other books remain, including Love, Violet, which is about a young girl trying to make a valentine for a female classmate.

The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals had ruled 2-1 against the parents in May, holding that the parents weren’t entitled to a preliminary injunction because they had not shown that they or their children were forced to change their religious beliefs or conduct.

According to the cert petition, five circuits now hold that Supreme Court precedent “essentially provides parents no protection once they place their children in the public system.” Only one circuit has found that forced instruction burdens parents’ free exercise rights under the precedent, the 1972 Supreme Court case Wisconsin v. Yoder, the petitioners say.

The defendants in the case are the Montgomery County, Maryland, superintendent of public schools, the school board and its members. They argue that there is no circuit split on the issue.

“Every single court of appeals that has considered the question has held that mere exposure to controversial issues in a public school curriculum does not burden the free religious exercise of parents or students,” their brief says.

The parents who challenged the policy are represented by the Becket Fund for Religious Liberty, a nonprofit public interest law firm, which issued a Jan. 17 press release here.

Write a letter to the editor, share a story tip or update, or report an error.

1. Home
2. Daily News
3. Federal judge offers ‘unreserved apology’…

Judiciary

Federal judge offers ‘unreserved apology’ after order says his Alito criticism violated ethics rules

By Debra Cassens Weiss

December 18, 2024, 12:09 pm CST

Senior U.S. District Judge Michael A. Ponsor of the District of Massachusetts is offering an “unreserved apology” and a commitment to “scrupulously avoid” future transgressions after he was found to have violated the judicial code of ethics for criticizing U.S. Supreme Court Justice Samuel Alito in an op-ed in the New York Times.

Ponsor’s apology letter resolves the ethics complaint, according to the Dec. 10 order by Chief Judge Albert Diaz of the 4th U.S. Circuit Court of Appeals at Richmond, Virginia. Diaz investigated after the case was transferred to his court from the appeals court with jurisdiction in Massachusetts, where Ponsor is located.

The Wall Street Journal broke the story on Diaz’s order, followed by coverage by Reuters and Bloomberg Law.

Ponsor, an appointee of former President Bill Clinton, had criticized the display of an upside-down flag at Alito’s home and an “Appeal to Heaven” flag at the justice’s vacation home in the May op-ed.

The flags are associated with stolen-election claims and Jan. 6, 2021, U.S. Capitol rioters. Alito has said his wife erected the flags.

“Flying those flags was tantamount to sticking a ‘Stop the Steal’ bumper sticker on your car,” Ponsor wrote in the op-ed. “You just don’t do it.”

Noting Alito’s claim that his wife flew the flags, Ponsor offered a hypothetical. If his wife had expressed her view of the death penalty when he had a case pending on that issue, Ponsor said, he would have recused himself based on the appearance of partiality.

Diaz said Ponsor’s criticism harmed public confidence in the integrity of the judiciary, and its “political implications and undertones” violated a ban on commenting on the merits of pending cases.

Following the flags controversy, Democrats had called for Alito’s recusal in pending cases involving obstruction charges against accused Capitol rioters and President-elect Donald Trump’s immunity from prosecution in the federal election-interference case.

The public might have interpreted Ponsor’s op-ed “as a commentary on partisan issues and as a call for Justice Alito’s recusal” in pending Jan. 6 cases, Diaz said.

Ponsor’s apology letter said the ethics violations were “unintentional at the time but clear in retrospect.”

The Article III Project, a conservative group, had filed the ethics complaint against Ponsor.

“The courts and Judge Ponsor took this seriously,” said Mike Davis, the founder of the Article III Project, in a statement cited by Reuters and the Wall Street Journal. “I accept his apology letter at face value.”

1. Home
2. Daily News
3. SCOTUS will decide whether Medicaid beneficiaries…

U.S. Supreme Court

SCOTUS will decide whether Medicaid beneficiaries can sue over state’s defunding of Planned Parenthood

By Debra Cassens Weiss

December 23, 2024, 9:23 am CST

The U.S. Supreme Court agreed Wednesday to consider whether Medicaid beneficiaries can sue over South Carolina’s decision to defund Planned Parenthood.

Although federal law generally bars Medicaid from paying for abortions, it does allow payment to abortion providers for other medical services, SCOTUSblog explains. Planned Parenthood had provided birth control, cancer screenings and physical exams to low-income South Carolina residents before the state cut off all Medicaid funds for the organization in 2018, according to the group’s brief opposing cert.

Planned Parenthood South Atlantic and one of its Medicaid patients sued.

At issue is whether beneficiaries can sue under Section 1983 of the Civil Rights Act under an “any-qualified provider” provision of the Medicaid Act.

The law provides that “any individual eligible for medical assistance” under the law can obtain care from any institution ready and qualified to perform the services, according to a brief opposing cert by Planned Parenthood.

Besides SCOTUSblog, publications with coverage include the New York Times, the Washington Post and USA Today. How Appealing links to additional coverage.

The 4th U.S. Circuit Court of Appeals at Richmond, Virginia, had allowed the lawsuit, according to New York Times.

“This case is, and always has been, about whether Congress conferred an individually enforceable right for Medicaid beneficiaries to freely choose their health care provider,” the 4th Circuit said. “Preserving access to Planned Parenthood and other providers means preserving an affordable choice and quality care for an untold number of mothers and infants in South Carolina.”

Federal appeals courts are split on the issue of a private right of action, according to South Carolina.

“Whether a private party can drag a state into federal court for disqualifying a provider should not turn merely on where that state is located,” says the state’s cert petition.

But the brief opposing cert argues that there is no split because the two appeals courts that found no private right of action ruled in cases in which a medical provider was terminated for cause, a factor not present in the South Carolina case.

South Carolina is represented by Alliance Defending Freedom, a conservative legal advocacy group.

“Taxpayer dollars should never be used to fund facilities that make a profit off abortion,” said Alliance Defending Freedom lawyer John Bursch in a statement cited by news coverage.

The case is Kerr v. Planned Parenthood.

1. Home
2. Daily News
3. Top news stories of 2024

Year in Review

Top news stories of 2024

By Lee Rawles

December 24, 2024, 8:00 am CST

Every year, we like to give our readers a peek behind our analytics and share which of our stories got the most traffic. For 2024, we’re sharing the top 10 news stories written for ABAJournal.com and the top five articles that also appeared in our magazine. The Second Amendment, law school rankings and retirement for lawyers all drew attention this year.

Top 10 articles on ABAJournal.com

1. States can’t ban guns in banks, hospitals and churches, but property owners can, 9th Circuit says

A federal appeals court has refused to allow two states to ban guns in some locations but limited the impact of its decision when it ruled that property owners can reject firearms.

2. New bar passage stats show several law schools below ABA cutoff

Western Michigan University’s Thomas M. Cooley Law School had the lowest two-year bar passage rate for 2021 graduates among ABA-accredited law schools, according to data released by the ABA Section of Legal Education and Admissions to the Bar.

3. Shake-up in US News’ 2024 law school rankings

The 2024 U.S. News & World Report Best Law Schools rankings is riddled with ties, including three ties in the top tier, and a few unusual jumps.

4. Judge resigns amid Jan. 6 rally probe; ‘I would do it over again’

A New York village and town court judge has agreed to resign amid an investigation into his attendance at a Jan. 6, 2021, rally in Washington, D.C.

5. Black retired judge who flew first class says flight attendant ordered her to use coach restroom

A Black retired judge from Chicago said she was flying first class when an American Airlines flight attendant accused her of slamming the first-class restroom door and later directed her to use the facilities in the back of the plane.

6. 4th Circuit upholds $1M sanction for law firm that tried to ‘sabotage’ federal court’s authority

A federal judge had inherent power to impose a $1.05 million sanction against a national law firm for asking state courts to order an end to U.S. district court litigation, a federal appeals court has ruled.

7. Retiring Reluctantly: As lawyers age, many struggle with exit strategies

For years, law firms across the country have been grappling with what to do with the baby boomers, the generation born between 1946 and 1964, as they reach and surpass the typical retirement age of 65. The problem, law firm consultants say, is that lawyers often don’t want to leave.

8. Judge assigned to Trump’s criminal case in Georgia once worked for DA

The state court judge appointed to preside in the Georgia racketeering case against former President Donald Trump once worked for Fani T. Willis, the current Fulton County, Georgia, district attorney who obtained the indictment.

9. Duane Morris partner ousted after wife found dead in stairwell and her parents allege domestic violence (Update)

A judge in Cook County, Illinois, has granted a temporary restraining order that prevents a now-ousted partner at Duane Morris from retrieving the remains of his wife after her body was found in a stairwell in his South Loop residential building.

10. Teen who enrolled in law school at age 13 becomes youngest person to pass California bar exam

A 17-year-old girl has beaten her brother’s record to become the youngest person to pass the California bar exam.

Top five ABA Journal magazine articles

1. 25 Books for Lawyers

The ABA Journal asked attorneys to share reads they found inspiring, insightful and useful in the practice of law. Here are 25 of their suggestions.

2. These Public Service Loan Forgiveness applicants have seen their student debt erased

Many public service attorneys had an overwhelming feeling that massive student loan debt would travel through life with them. But many of those attorneys got relief in the past year, thanks to recent changes to the federal government’s Public Service Loan Forgiveness program.

3. Resting Your Cases: Thinking about retirement? Lawyers give advice about money, goals and happiness

Lawyers can have meaningful and fulfilling lives after retirement. However, there are some important steps to take long before leaving a full-time legal career.

4. Lawyers as Explainers: Remember, you are writing for intelligent people

“As professional workers with words, lawyers above all must be good explainers,” writes Bryan Garner. “The basic approach of expert explainers is to say what would need to be said clearly, simply and pleasantly to a small mixed audience of intelligent people. You think all this is obvious? It’s not. The qualities we’re discussing here aren’t commonplace. They’re rare.”

5. Guard against poor legal research with these 3 writing practices

“Not long ago, the partners at a law firm told me of an embarrassingly disastrous trial,” writes Bryan Garner. “They wanted to know whether I knew of ways to prevent this type of problem. The answer is a qualified yes: While there are no panaceas, certain protocols can minimize the risks of suboptimal research. Here are the three crucial points.”

1. Home
2. Daily News
3. 2 federal judges have changed their minds…

Judiciary

2 federal judges have changed their minds about senior status; will 2 appeals judges follow suit?

By Debra Cassens Weiss

December 5, 2024, 10:02 am CST

After President-elect Donald Trump won a second term in the White House, two Democratic-appointed federal judges announced that they no longer plan to take senior status.

The reversal means that there will not be two additional vacancies for Trump to fill when he takes office, report Reuters, Law360, Law.com and CNN.

The two judges are:

  • U.S. District Judge Max O. Cogburn Jr. of the Western District of North Carolina, an appointee of former President Barack Obama. Cogburn had announced his plans to take senior status after his successor was confirmed in 2022, but Biden did not choose a replacement. Any nominee would have needed the approval of North Carolina’s two Republican U.S. senators under a U.S. Senate custom of blue-slip approval.

  • U.S. District Judge Algenon L. Marbley of the Southern District of Ohio, an appointee of former President Bill Clinton. Marbley had notified Biden of plans to retire in October 2023, according to the Columbus Dispatch and Reuters. Biden had not nominated a replacement, which would have needed the support of Vice President-elect J.D. Vance, who’s currently one of Ohio’s two senators. The other senator is Democratic Sen. Sherrod Brown.

Judges can take senior status, which allows them to reduce their caseload, if they are older than age 65 and have been on the bench at least 15 years, Reuters explains.

The judges’ decisions come amid a deal between Democrats and Republicans in which the Senate won’t hold votes on four of Biden’s appeals court nominees while advancing the president’s district court nominees, according to the Associated Press and Bloomberg Law.

The deal was made after Republicans used “stalling tactics” to hold up judicial confirmations, according to Bloomberg Law.

The deal gives Republicans a chance to fill seats on the 3rd U.S. Circuit Court of Appeals at Philadelphia and the 1st Circuit at Boston. The two other appellate judgeships are not yet officially open because the judges made their transition to senior status contingent on confirmation of a successor.

Those two judges are Judge Jane Branstetter Stranch of the 6th Circuit at Cincinnati and Judge James Andrew Wynn of the 4th Circuit at Richmond, Virginia.

Republican Senate Minority Leader Mitch McConnell of Kentucky is worried about the possibility, according to CNN’s reporting on his comments.

“Never before has a circuit judge unretired after a presidential election,” McConnell said. “It’s literally unprecedented. And to create such a precedent would fly in the face of a rare bipartisan compromise on the disposition of these vacancies.”