CHARLESTON – A federal 4th Circuit appeals court judge and West Virginia native has rescinded his plan to become a senior status judge and will remain on the bench.
Speculation is that Judge Robert King, 81, rescinded his decision last week because he wasn’t pleased with President Joe Biden’s choice to replace him.
This summer, the 81-year-old King announced his plan to move to senior status once his successor was confirmed. But last week, he stepped back from that plan.
Carte Goodwin
Sources say King likely had an issue with Biden’s planned replacement, which was J. Jeaneen Legato, a Charleston attorney with close ties to U.S. Senator Joe Manchin.
King reportedly wanted Carte Goodwin to take his seat on the appeals court.
Goodwin is a partner at Frost Brown Todd, leading the firm’s Charleston office and serving as vice chairman of the firm’s appellate practice. He was general counsel to Manchin when he was governor, and Manchin appointed him to fill the U.S. Senate vacancy left by the death of Robert C. Byrd. Goodwin also served as King’s federal law clerk.
Goodwin is the nephew of U.S. District Judge Joseph Goodwin and the cousin of former U.S. Attorney Booth Goodwin, whose wife Amy Shuler Goodwin is the mayor of Charleston.
This summer, Carte Goodwin called King a “quintessential West Virginia success story.”
“You’d be hard pressed to find any nominee for any level of the judiciary that brought broader experience to the bench than Judge King does,” Goodwin said then. “His style (is) certainly informed by that breadth of experience, and he always had an appreciation for the pressures that practicing attorneys go through.”
In August, King said it was a good time to pass the torch.
“The time is right,” he said then. “I’m getting old and I’ve served now for nearly 23 years. It’s time to give President Biden and the Senate an opportunity to put in somebody that’s got less mileage.”
But his letter to Biden last week had a different tone.
“After careful consideration, I have decided to continue for the foreseeable future in regular active service,” he wrote. “I apologize for any inconvenience I may have caused.”
John Collins, a law professor at George Washington University who studies judicial nominations, said King’s decision is unusual, but not unprecedented. He noted a similar issue in 2018 when 7th Circuit Judge Michael Kanne reversed course because he didn’t like President Donald Trump’s selection.
Collins also said he “would be very surprised if it was just a change of heart.”
“He’s been a circuit judge for more than 20 years, and I’m sure he didn’t just retire on a whim only to regret it later,” Collins said in media reports.
Kanne planned to go to senior status pending the selection and appointment of Indiana Solicitor General Tom Fisher, who was a former Kanne clerk. But Vice President Mike Pence opposed the plan, and Trump didn’t nominate Fisher. So Kanne rescinded his decision.
“Historically, once eligible, judges have taken senior status immediately, or at some date certain in the future,” constitutional law professor Josh Blackman wrote for reason.com. “But in recent years, circuit judges have informed the president that they would take senior status upon the confirmation of their successor.
“I was never entirely sure how judges could make this sort of conditional offer. But one of the upshots from this approach is that judges didn't actually take senior status at the time of the announcement. Rather, they would remain in full, active status until some unknown date in the future. And, presumably, those same judges can have a change of heart, and decide not to formally take senior status. These announcements are not binding promises that can be enforced in any meaningful sense.”
King has served on the 4th Circuit Court of Appeals since he was appointed by President Bill Clinton in 1998. He also was the U.S. Attorney for the Southern District of West Virginia from 1977 to 1981. After that, he worked in private practice until Clinton appointed him to the federal appeals court.
He is a native of White Sulphur Springs and a 1968 graduate of the West Virginia University College of Law.
“I suppose Biden could accede to King's demand, and nominate the former clerk,” Blackman also wrote. “But that cave would give judges a veto power over presidential nominations.
“I think Biden will have to hold the line to avoid setting a precedent, even if he cannot fill this particular seat.”
Earlier this year, Biden nominated Virginia Solicitor General Toby Heytens to the 4th Circuit bench after Judge Barbara Milano Keenan assumed senior status in August.
The 4th Circuit hears appeals from federal district courts in Maryland, North Carolina, South Carolina, Virginia and West Virginia.