Judges Are Now Using Their Retirements as Leverage Against the President

I have previously discussed this issue, but it is only getting worse and will only get even more worse with time.

Retirement and senior status are governed by 28 USC 371, linked to below.

https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section371&num=0&edition=prelim

My proposal would delete the existing Section 371 and replace it with a new Section 371, Section 371a and Section 371b.

In short, it would compel lower court judges to move to senior status (or retire) on the day on which they become eligible to do so. Because a senior judge “retains the office” and “retains the salary” this legislation is entirely constitutional. They are merely being compelled to vacate the seat to which they were appointed, but still remain federal judges.

For district judges, there is functionally zero difference between an active service judge and a senior judge who maintains a 100% caseload. For example, Jack B. Weinstein of the Eastern District of New York was appointed in 1967 by LBJ, took senior status in 1993, but continued to hold a 100% caseload until his retirement at age 98 in 2020, about a year before his death.

For circuit judges, senior judges are typically excluded from en banc proceedings, unless they participated in the original three judge panel. My proposal would change this to ensure the overall legislation remains constitutional. Senior judges would be able to participate fully in en banc proceedings.

This legislation would make no changes for Supreme Court justices.

The fix is short and simple, since the existing provisions of statute are short and simple.

AN ACT

To establish a mandatory transition date to senior status for Article III Judges, other than Justices of the Supreme Court, serving during good behavior.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

Section 1. This act may be cited as the “Mandatory Senior Status Act of 2023”.

Section 2. IN GENERAL.—Part I of Title 28, United States Code, is amended by striking §371 in its entirety and adding the following new sections:

§371. Retirement on salary; retirement in senior status, judges

(a) Any judge of the United States appointed to hold office during good behavior, other than justices of the Supreme Court of the United States, upon the day of attaining the age and meeting the service requirements, whether continuous or otherwise, of subsection (d), shall elect to proceed under subsection (b) or subsection (c), and if he shall initially elect to proceed under subsection (c) he may later elect to retire under subsection (b). If a judge shall fail to elect a mode of proceeding by the day he attains the age and meets the service requirements of subsection (d), he shall automatically be retired from active service, but shall retain the office and shall continue to receive the salary of the office as if he had elected to proceed under subsection (c).

(b) Any judge may retire from the office and shall, during the remainder of his lifetime, receive an annuity equal to the salary he was receiving at the time he retired.

(c) Any judge may retain the office but retire from regular active service and shall, during the remainder of his lifetime, continue to receive the salary of the office.

(d) The age and service requirements for retirement under this section are as follows:

Attained age: Years of service:

65 15
66 14
67 13
68 12
69 11
70 10

(e) The President shall appoint, by and with the advice and consent of the Senate, a successor to a judge who retires under this section.

(f) All judges who meet or exceed the age and service requirements on the effective date of this act shall be required to proceed under subsections (a)(b)(c) of this section on that date.

§371a. Retirement on salary; retirement in senior status, justices

(a) Any justice of the Supreme Court of the United States appointed to hold office during good behavior may retire from the office after attaining the age and meeting the service requirements, whether continuous or otherwise, of subsection (c) and shall, during the remainder of his lifetime, receive an annuity equal to the salary he was receiving at the time he retired.

(b) Any justice of the Supreme Court of the United States appointed to hold office during good behavior may retain the office but retire from regular active service after attaining the age and meeting the service requirements, whether continuous or otherwise, of subsection (c) of this section and shall, during the remainder of his or her lifetime, continue to receive the salary of the office.

(c) The age and service requirements for retirement under this section are as follows:

Attained age: Years of service:

65 15
66 14
67 13
68 12
69 11
70 10

(d) The President shall appoint, by and with the advice and consent of the Senate, a successor to a justice who retires under this section.

§371b. Provisions pertaining to judges, other than Justices of the Supreme Court, in senior status.

(a) Any judge, other than a justice of the Supreme Court, having taken senior status under the provisions of §371 and who shall maintain one hundred percent of the caseload of a judge in regular active service, shall maintain the precedence of his commission among the judges of his court and the judge’s senior status shall not disqualify him from becoming or remaining Chief Judge of his court, if he is otherwise eligible for the position.

(b) Any judge, other than a justice of the Supreme Court, having taken senior status under the provisions of §371 and who shall have reduced his caseload to less than that of a judge in regular active service, shall, for purposes of precedence, be ranked according to his caseload and then by date of his commission. Such judge shall not be eligible to serve as Chief Judge.

(c) The precedence of senior judges, as governed by subsection (a) and (b) of this section shall govern the assignment of chambers and courtrooms.

(d) All court of appeals judges in senior status, regardless of caseload, shall have the right to participate in en banc proceedings, including voting on whether to proceed en banc and full participation and voting in final determinations of en banc proceedings.

(e) The provisions of §371b shall not apply to any judge who takes senior status voluntarily or involuntarily pursuant to §372.

Section 3. The effective date and time of this act shall be noon Eastern Standard Time on January 20th, 2025.

This is an easy and necessary item of legislation.

Yes, please.

You have a lot of good ideas. Ever thought of getting into politics?

Actually, I am, in a matter of speaking.

As a lobbyist for my industry.

In doing so, I have taken the opportunity to pass ideas like this on to legislators, after I have finished the business for which I contacted them.

I would be too blunt to be a politician, other than maybe local office.

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Nice one mate. Good to see someone involved and using their position to try and make a difference.

I don’t think the SC would buy it. I mean, they ruled that not increasing salaries to keep up with inflation is the same thing as reducing salaries and therefore unconstitutional. Really, they are going to accept that forcing into a retired status isn’t the same thing as removing?
Just go for a constitutional amendment.

Congress really forced the court’s hand on salaries. In 1989, they basically assured that judges would get a yearly cost of living increase, in return for giving up most outside income and honoraria.

They reneged on that promise as soon as 1994. then in 1995, 1996, 1997, 1999, 2007, 2009, 2010, 2011, 2012 and 2013. Around 2010, United States District Judge Peter H. Beer, joined by several other judges, sued in the United States Court of Federal Claims for wrongful denial of pay, stating that withholding of pay increases under the ethics reform act was a violation of the compensation clause. The Federal Claims Court agreed and the United States Court of Appeals for the Federal Circuit upheld this decision. The United States Supreme Court did participate briefly by issuing a GVR to the Federal Circuit to reconsider some issues, but never ruled on the merits. This case only applied to the participating judges.

A second case filed in the Federal Claims Court on behalf of ALL Article III Judges was then filed and at that time, the Constitutional argument was added. The Federal Claims Court agreed and the Federal Circuit affirmed. The government under President Obama declined to appeal to the Supreme Court to avoid the awkward situation of having the Supreme Court vote itself a perpetual pay increase. They knew full well the Supreme Court would have upheld the Federal Circuit. The Judges not only received their pay increases, but full back pay for all missed increases, dating back to 1994 for some long time Judges.

That all being said.

I don’t think they will oppose this, as there is nothing unconstitutional to oppose.

Functionally, there is ZERO difference between an active status judge and a senior judge who maintains a 100% caseload. They have the same judicial power and the same judicial pay. All that changes is that they no longer occupy the seat to which they were appointed.

Again, the example I will use is the legendary Jack Weinstein of the Eastern District of New York. He took senior status in 1993 when he became eligible. He maintained a 100% caseload until just before his retirement and death. During that period, he decided numerous high profile cases. Clearly his power and stature were in no way diminished because of his senior status.

The one issue I see occurs only at the Court of Appeals and that is participating in en banc proceedings. Currently, senior Judges do not participate in en banc proceedings unless they participated in the original three Judge panel. My proposed legislation deals with this by granting senior Judges the right to participate in all en banc proceedings.

The key fact is that a senior Judge “retains the office.” As long as he is not deprived of the office or of his salary against his will, the underlying legislation is constitutional.

I believe the legislation I have drafted to be fully constitutional.

In the case of the pay increases, basically Congress ■■■■■■ over the Judges one too many times and they decided they were going to set their own pay once and for all, and they did just that.

The article uses only 3 judges to make it’s case. That’s not exactly a trend. Slate magazine is always pure democrat propaganda and so can’t be trusted. Just on that alone I would not support anything they propose.

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The judiciary has become the Division of Enuchs in ancient China.

I have been following this for some time and I can assure it is much more prevalent than just three Judges.

And I would note that certain Republican appointed judges tried the same bull ■■■■ with President Trump.

I assure you, it is a problem.

And Slate did not propose the kind of solution mentioned in the OP. That is my own creation, derived from ideas put forth by others.

My solution is bipartisan, as neither Democratic appointed or Republican appointed Judges could game the system to try to force a particular nominee.

no. you are either a judge occupying a seat or retire. period. senior status should be done away with

While I oppose this, I also want to point out what would have to happen to implement this.

The Middle District of Florida has 15 seats with 1 vacant. The district has 14 Senior Judges serving. Even if all 14 were carrying the minimum 25% caseload to serve in senior status, that still represents 3 1/2 full time judges. But as some judges carry bigger or full caseloads, in reality those 14 Senior Judges likely amount to at least 7 full time judges.

In short, abolishing senior status would require a very significant addition of new Judgeships around the country to make up for the lost labor of senior judges.

Are you willing to support the necessary judgeship bill to provide these new judgeships?

It would not stop Judges from serving to old age. Judges would simply carry on in active status, instead of senior status.

Senior Judges are basically working for free. They could retire on full salary. Instead, they choose to come in an continue working. If you eliminate Senior Judges, you are paying them AND the new Judgeships you must create to replace their labor.

And Senior Judges carry the institutional history, knowledge and wisdom of the court and pass it on to new active Judges, whom they mentor. We don’t have Judge school in this country. Law school, but not Judge school. While the Judicial Conference does give an educational seminar to newly appointed Judges, that doesn’t cover anywhere near all they will face while on the bench. Senior Judges fill in those educational gaps for new Judges. They mentor new Judges on the best ways to handle dockets, how to handle motions under the Criminal and Civil Rules of Procedure and so much more. The institutional mentorship of Senior Judges ensures new Judges get it right in their courtroom procedure.

In Civil Law countries, Judges attend comprehensive Judge school. In Common Law countries, it is basically learn the job on the fly. The United States is a Common Law country and so Senior Judges are an indispensable asset.

Restating my first point.

If you were to abolish senior judges, you would need to add probably 2 new Federal Judgeships for every 4 Senior Judges who would have to leave the bench, in order just to keep the Federal Judiciary at its current caseload capability.