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.