The Hispanic National Bar Association (HNBA) has sent a letter to Judge Roslynn R. Mauskopf, the director of the Administrative Office of the U.S. Courts, urging her to recognize the court vacancy opened by Judge David N. Hurd’s intent to take on senior status and to reject his condition that he has to approve of his successor. 

President Joe Biden’s nomination of Jorge Alberto Rodriguez to serve on the U.S. District Court for the Northern District of New York has been stalled since Hurd rescinded his initial letter of intent and gave new conditions. 

In his initial letter, sent on Nov. 1, 2021, he said that he would take on senior status after the confirmation of his successor. For federal judges, senior status functions as a semi-retirement where they hear a reduced amount of cases. 

He rescinded the first letter on July 14, 2022, the day after Biden announced his nomination of Rodriguez. In his new letter, Hurd, who is based out of Utica, New York, said that he would take on senior status if the nominee was “permanently assigned to the United States Courthouse in Utica, New York” and lived in the area. 

Rodriguez is based out of Albany, New York, which falls under the jurisdiction of the Northern District of New York. He has been the Assistant Attorney General of New York since 2014. 

The HNBA’s letter argues that allowing Judge Hurd to rescind his retirement until he approves of his successor undermines the entire appointment process. If his nomination is approved, he would be the first Latino judge to be appointed to the U.S. District Court for the Northern District of New York.

“Judge Hurd’s actions are in derogation of the exclusive authority [of the President and Senate] under the Appointments Clause, and sets a dangerous precedent to block the nomination of Mr. Rodriguez. The ability to withdraw a retirement while a presidential nomination of a successor is pending creates the potential for an incumbent's veto over the nominee,” the letter states.

The letter then provides examples of the times that judges could have rescinded their retirement if they didn’t approve of their successor but didn’t, “not only because it would be unconstitutional, but also because it would be unseemly for a justice or a judge to inject themselves into the political process of judicial selection, a power reserved to the President with the advice and consent of the Senate—not any incumbent.”

The HNBA again urges Judge Mauskopf to allow Rodriguez’s nomination to move forward. They also give their support to updating the Code of Conduct for U.S. Judges so that a judge cannot condition their retirement or move to senior status on the nomination of a specific successor and that doing so would be a judicial ethics violation. 
 
The letter was signed by Mariana Bravo, the HNBA National President; Robert Raben, Chair of the HNBA Judiciary Committee; and Alexander Gonzalez, the Co-Chair of the HNBA Judiciary Committee.