On The Case

How federal circuits can create judicial vacancies without help from Congress - new paper

(Reuters) - When President Donald Trump completes his term on Wednesday, he will have appointed 54 judges to federal appellate courts – a record number for a one-term president. The president’s judicial nominees flipped the balance of power between Democratic and Republican appointees on the 2nd, 3rd and 11th U.S. Circuit Courts of Appeal and significantly narrowed Democratic appointees’ majority in the 4th and 9th Circuits. Appellate judges appointed by Trump will shape the law for decades to come. And President-elect Joe Biden won’t have much opportunity to counter that influence quickly: There are currently only two vacant seats for federal circuit judges, according to the Reuters’ Courting Change project.

There is, however, a way in which judges and courts can create new appellate openings for the Biden Administration without Democrats stepping down from the bench. Judges who are 65 or older may be eligible to take senior status. (Eligibility depends on the “Rule of 80”: A judge’s age plus years of service must total more than 80.) Senior judges can still hear appeals and write opinions. But when judges take senior status, they create vacancies for new active judges to be appointed. Political considerations aside, there’s a good reason for appellate courts to encourage eligible members to take senior status: More senior judges hearing cases means a lessened case load for every judge on the circuit court.

There are statutory limitations on senior judges’ power. They cannot participate in en banc proceedings unless they were on the three-judge panel that initially heard the appeal. Nor can they vote on whether to grant en banc review. But there are also statutory incentives for appellate judges to take senior status because their income is not subject to social security taxes or, in many states, to state income taxes. (Those tax benefits were the explanation most frequently cited by appellate judges who stepped down from active status, according to a 2012 study, Leaving the Bench, 161 U. Pa. L. Rev. 1.)

There are at least 60 federal appellate judges who are eligible right now for senior status, according to The Promise of Senior Judges, a forthcoming Northwestern Law Review paper by Duke law professor Marin Levy. The Judicial Conference asked Congress in 2020 to create five new appellate judgeships (all in the 9th Circuit). So if even 10% of the eligible federal appellate judges took senior status, Levy pointed out, they’d create more openings than the Judicial Conference has requested. If a quarter of the eligible judges stepped down from active status, they’d generate more openings than Congress added to the appellate courts in 1990, the last time lawmakers expanded the number of circuit judges.

Levy’s paper highlights little-noticed rules in the various circuits that may discourage judges from taking senior status. These matters of protocol – ranging from consequential issues such as whether senior judges can pick which opinions to write to purely ceremonial questions about where senior judges sit when the entire court makes an appearance – are entirely within each circuit’s authority. By effecting small changes to empower and dignify senior judges, Levy argues, the appellate circuits could significantly alleviate their own case loads without invoking the politics of court-packing.

“What would really help,” said Levy, who is working with Judge Jon Newman of the 2nd Circuit on a book about internal circuit court procedures, “would be if courts could take an active interest in making senior status more attractive.”

It’s probably not an accident, Levy told me, that two of the courts with the heaviest workloads – the 2nd and 9th Circuits – have adopted rules to accommodate senior judges. In the 9th Circuit, for instance, senior judges can specify where they will hear cases, eliminating the need for travel to inconvenient courthouses. Senior judges in the 9th Circuit are also empowered to call for a vote for en banc review of any case, even cases in which they were not on the three-judge panel that originally decided the appeal. The 2nd Circuit’s protocols, meanwhile, permit senior judges to request specific dates to hear cases and to get first crack at which opinions to write (or to duck writing) after a panel hearing.

Other circuits are less deferential as a matter of custom and procedure, according to Levy’s paper. In the Federal Circuit, where office space is at a premium, senior judges may not be permitted to retain desirable chambers, even if they’ve been in those chambers for years. In the 6th Circuit, senior judges may be asked to share visiting chambers when they travel to out-of-town courthouses for oral arguments.

Some of the indignities may seem small - the 3rd and 4th Circuits, for instance, list senior judges after active judges on orders and opinions; and the 3rd, 4th, 11th and D.C. Circuits give even the most junior active judges preference over senior judges in oral argument seating arrangements — but, Levy said, may loom large for judges considering senior status. By the time they’re eligible, she said, these judges have become accustomed to presiding over most of the appellate panels they sit on. It can be hard, Levy said, to plummet from the height of their power and responsibility to being listed last on an opinion and pushed to the wings of ceremonial gatherings.

Levy told me there’s no particular rule or protocol she would suggest for every circuit that wants to encourage judges take senior status. The idea, she said, is more broadly to allow judges to hold on to their dignity and sense of status. “If more could be done for senior judges — to ensure that they not lose their chambers, to provide them some choice in opinion assignment, to not have them be ‘demoted’ in rank on opinions and at ceremonial functions, and the like — more eligible judges would make the transition,” Levy said in the Northwestern paper. “This, in turn, would create more vacancies for the courts of appeals without adding new judicial seats.”

There are some costs to increasing the number of senior judges, as Levy acknowledged in her paper. Chief among them is the expense of maintaining office space and staff for judges who carry a smaller case load than their active colleagues. (Senior judges are generally expected to hear at least 25% of the docket of an active circuit court judge.) And any procedural deference to senior judges would come at the expense of more recently appointed appellate judges, who might have to wait longer to, say, write opinions in consequential cases.

Moreover, Levy said in the paper, there is a risk that if circuits change their protocols now to encourage judges to take senior status, those changes will be viewed as politically motivated. The Los Angeles Times reported in November on comments from an unnamed 9th Circuit judge who said Democratic appointees were holding out for a Democratic administration. The 2012 study on judges’ motivations for retirement found politics to be low on the list, but Levy told me party affiliation has probably become a more salient consideration since that paper was published.

Nevertheless, Levy said the point of her paper is to depoliticize, as much as possible, the process of judges’ stepping down from active status in order to allow courts to take full advantage of judicial resources. If courts preserve senior judges’ dignity and offer them some incentives to step down from active service, she theorized, politics may weigh less heavily in their decisions.

“The larger goal,” she wrote, “is that more judges will take senior status as soon as they are eligible, which would mean fewer would wait for a president of a particular political party to be elected. If norm-building is possible, the process could ultimately make the creation of vacancies less political, not more.”

At the very least, that’s a goal we can all hope for.