Neither Gone nor Forgotten: Evaluating the Potential Impact of Senior Status Judges on the U.S. Courts of Appeals

Article excerpt

Senior status judges serve an important, albeit often overlooked, role on the federal bench.

In his 2010 Year-End Report on the Federal Judiciary, Chief Justice John Roberts emphasized his concern with the partisan gridlock stalling the judicial appointment process for lower federal court judges.1 This gridlock, according to the Chief Justice, has raised concerns over caseloads, particularly "in critically overworked districts."2 In his report, Roberts noted that the situation would be especially dire but for the service of judges who continue to work after taking senior status.3

Other recent accounts have substantiated the important role served by senior judges on the bench, and on certain courts in particular. In early 2011, when judges had been leaving the active bench at a rate of one per week, workload pressures and reliance on senior judges were apparent on courts in Arizona and central Illinois.4 The critical importance of senior judges to the operation of the U.S. Court of Appeals for the Ninth Circuit was also highlighted after the recent deaths of senior judges on that court.5 In Kansas, U.S. District Court Judge Wesley Brown was still hearing a full docket well after his 100th birthday and continued to work a reduced caseload until his death in January of 2012 at the age of 104.6

Roberts' comments, coupled with these anecdotes related to specific courts, are reminders that senior status judges serve an important, albeit often overlooked, role on the federal bench. Most scholarly work on the composition and output of the judiciary tends to focus exclusively on the active bench without consideration of the continuing service of the senior bench. In this study, we examine the potential impact of senior judges on the composition and work of the U.S. Courts of Appeals. In doing so, we highlight not only the increasing importance of these judges to the circuit courts, but also the need to include consideration of senior judges in studies of decision making on the U.S. Courts of Appeals.

The Effects of Senior Status: Creating Vacancies and Remaining on the Bench

Recognizing the potential drawbacks of lifetime tenure for federal judges, Congress established a retirement system in 1869 and later enacted legislation in 1919 that provided an additional option for pension-eligible judges; senior status. The 1919 legislation allowed older judges to hear a reduced caseload and, at the same time, permitted the president to appoint a successor to the active bench with the advice and consent of the Senate. The current system provides for judges to become pension eligible under the "rule of 80." Beginning at age 65, a federal judge may retire or take senior status after 15 years of service as an Article III judge. Using a sliding scale of increasing age and decreasing service, judges may be eligible for retirement at age 70 with a minimum of ten years of service. To retain some staff, senior judges must carry a minimum of a 25 percent active annual caseload.7

Existing scholarship on decisions to take senior status emphasizes the increasing importance of voluntary departures for the creation of vacancies on the bench.8 Prior to 1932, for example, vacancies arising from the decision to depart voluntarily constituted 39 percent of all vacancies, a number that has increased to 55 percent in the years since 1969. In a thorough analysis of the contributions of senior judges, Yoon documents the steady rise in the number of senior judges over time.9 Senior judges comprised roughly 5 percent of the judiciary for the first 15 years after the creation of that option in 1919, whereas the percentage had increased to 37 percent in 2000.10 With respect to caseload, on the district courts, from 1980 to 2002 the caseloads of senior judges nearly doubled.11 Yoon noted that the contributions of senior judges on the appeals court bench are more difficult to evaluate due to the dramatic increase in the number of appeals from 1980-2002. …