This is something that has been going on for years. Most recently the sudden wave of Democratic appointee retirements when Biden took office. But the same thing occurs routinely under both Republican and Democrat Presidents, with a mass of judicial appointees of the respective President’s party retiring.
Unfortunately, two Judges have taken it up a notch, Democratic nominees who initially took “conditional” senior status, then rescinded it. In particular, Circuit Judge Robert King of the 4th Circuit (appointed by Clinton) initially took senior status conditional upon the appointment of his successor. But when he learned that Biden was not going to nominate King’s preferred choice, a former Clerk of King’s, and that instead Biden was going to nominate an attorney preferred by Manchin, King rescinded his announcement and will continue in active status. Biden may simply have to give up on filling this seat, because if he gives into King and nominates King’s preferred candidate, he will set the precedent that Judges can veto the nomination of a disliked successor.
So, here is the solution to the problem. Note that this applies to all Article III Courts EXCEPT the Supreme Court, to which it will not apply.
Currently, any Article III Judge appointed to serve during good behavior can voluntarily retire or take senior status when they: 1. reach 65 years of age 2. have completed at least 10 years of service 3. their whole number age plus their whole number years of service equal to 80. However, retirement or senior status is entirely voluntarily and a Judge can stay in active status for pretty much as long as he or she can manage a full time case load. Perhaps the most extreme current example is Pauline Newman of the Federal Circuit at 94 years old, despite being senior/retirement eligible since 1997, though her reason for staying on active status is to retain her ability to participate in en banc proceedings.
I would change the statute to AUTOMATICALLY shift a Judge to senior status the day the Judge becomes eligible under statute. Because a senior status Judge “retains the office” under statute, such an act is Constitutional and does not violate the “Good Behavior” clause.
I would make the following changes to senior status to avoid infringing on prerogatives of Judges:
- Judges in senior status would retain their precedence of seniority.
- Judges in senior status could become/remain Chief Judge of a court, if under age 70.
- As long as the Judge maintains a 100% case load, the Judge would be able to retain his desired chambers and courtroom.
- On Courts of Appeals, Judges in senior status would retain their seniority on three judge panels.
- On Courts of Appeals, Judges in senior status would retain the right to participate in en banc proceedings, including voting to go en banc and the en banc proceedings themselves.
When a new Judge is formally appointed and takes the Oath of Office, his retirement/senior status date becomes irrevocably set in stone. If the Judge is less than or exactly 50 years old at the time of appointment, he knows that his mandatory senior status will occur on his 65th birthday, 15 years or more hence. If he is greater than 50 years of age at the time of appointment, his mandatory senior status will occur on the date dictated by the Rule of 80.
He cannot change or control this date. There may be a Republican or Democratic President and a Republican or Democratic Senate on that date. He would have ZERO control over his replacement. And this would put a quick end to this recent bull ■■■■ of trying to torpedo a disliked successor.
I would make this act effective on January 20th, 2025, to avoid the appearance of giving the incumbent President a judicial windfall. Instead, any windfall would go to the unknown winner of the 2024 election.
