Building Biden's Bench: How His Nominees Could Create a More Diverse Judiciary

“As a sitting judge, I have the right to decide who works for me as a law clerk,” said Daniel Traynor, currently a judge on the U.S. District Court for the District of North Dakota. “When this matter was reviewed by the Eighth Circuit and other courts around the country, they concluded that judges do not surrender their First Amendment rights when they become judges.”

Engelhardt, whom President Donald Trump elevated to the Fifth Circuit in 2018, wrote in a letter that he will retire from active service on Dec. 31 or upon confirmation of a successor.

Although they admit there was an "oversight," the president's attorneys argue the delay in docketing the response with the court did not stem from an "apparent disregard of court deadlines," as the judge held, but from "good-faith efforts" to comply with confidentiality designations in a protective order.

The Judicial Council of the Eleventh Circuit in February found that the judge committed misconduct by engaging in an extramarital affair with a high-ranking police officer, having sexual intercourse in chambers during business hours within hearing distance of staff and later lying about it to the investigating judges.