The Constitution gives federal judges the right to serve “during good behaviour.” In practice, that means federal judges serve for life, choosing whether and when they retire. Studies have shown that judges are more likely to voluntarily retire under presidents of the same party that appointed them, most likely out of a preference to be replaced by judges of a similar ideology.
The tendency of judges to strategically time their retirements is a natural one. Justice Antonin Scalia once noted that he “would not like to be replaced by someone who immediately sets about undoing” what Scalia himself had tried to do during his judicial career. So long as judges have the power to choose when they are replaced, the practice of strategic retirement is likely to continue.
But recently, some judges have seemingly taken strategic retirements a step further. Last year Judge Robert King of the Fourth Circuit revoked his planned transition to senior status (a kind of semi-retirement that triggers a judicial vacancy), reportedly out of dissatisfaction with the particular person the Biden administration planned to choose as his replacement.
A similar story played out in 2018, when Judge Michael Kanne of the Seventh Circuit reversed course on a plan to take senior status. As Judge Kanne candidly admitted, his original decision to take senior status had been “on the consideration that [a former clerk] would be named” as his replacement. When that former clerk told Judge Kanne that he would be passed over for the nomination, Judge Kanne replied “If you’re not going to be named, then I’m not going to take senior status.”
In April of this year, Judge Johnnie Rawlinson of the Ninth Circuit publicly urged that a particular former clerk of hers be nominated as her successor, even though she had not yet decided whether to retire. With little subtlety, Judge Rawlinson told Reuters she could be “persuaded” to take senior status, in an interview in which she further boosted her preferred nominee.
And just this past month, strategic retirements were put back in the spotlight with the news that Judge Karen Caldwell of the Eastern District of Kentucky had made her intention to take senior status known to a select few political actors (including President Joe Biden and Senator Mitch McConnell) and that a deal had been struck to name a particular replacement before her decision became public. At least one report alleges that Judge Caldwell too conditioned her retirement on that particular choice of replacement. (It should be noted that the deal for her intended replacement has since fallen through, but there is no indication that Judge Caldwell intends to revoke her transition to senior status.)
Whatever the full story may be in any of these particular cases, the prospect of judges influencing the selection process for their successors raises serious concerns. When judges use their power of discretionary retirement to influence the political branches into picking a particular judicial nominee, they arguably cross the line into impermissible political activity. At the very least, it is not ideal for judges who must often sit in judgment of the other two branches to at the very same time be involved in negotiations with the political actors in those branches. As Professor Richard M. Re observes in a forthcoming law review article, “interbranch bargaining is ill-suited to the assertedly independent federal judiciary.”
Judicial influence over appointments also arguably warps the Constitution’s intended separation of powers, under which it is only the president and the Senate who have a role in nominating and confirming judges. As Laurie Lin and David Lat put it in a Wall Street Journal op-ed, “judicial seats aren’t property to be bequeathed.” Acceding to a judge’s demand for a particular replacement in the face of a threat to un-retire would, in Professor Josh Blackman’s words, “give judges a veto power over presidential nominations.” And Professor Re calls the idea of judges exerting such control “inimical to the role of federal courts and at odds with the constitutionally delineated process for selecting officials[.]”
If this emerging practice is indeed problematic, what can be done to stop it? Professor Re proposes making judicial retirement letters formally binding and irrevocable (either by court rule or by statute), so that judges cannot renege on a commitment to retire out of opposition to the choice of their successor. Lin and Lat propose that the Code of Conduct for U.S. Judges should be revised to make explicit that “judges putting conditions on their retirement, or entertaining offers from the White House regarding their successors, is unacceptable.” (This approach is also supported by Gabe Roth of Fix the Court.) And Professor Blackman urges the president, when faced with a judge’s threat to un-retire, to stick with his chosen nominee and “hold the line to avoid setting a precedent,” even if it means losing the opportunity to fill a particular seat.
These are all promising reform proposals, but there is an even more sweeping option that would prevent judges from engaging in any retirement-related gamesmanship in the future: entirely decoupling judicial appointments from judicial retirements.
Federal law currently defines the jurisdiction of the various district and circuit courts and assigns each of those courts a fixed number of seats. Thus, the timing for when a president may make an appointment to any particular court is dependent on when particular incumbent judges leave. Because the number of seats on each court is fixed, an appointment can only be made when a particular seat falls vacant.
But nothing in the Constitution requires that the size of the courts be defined by a fixed number of seats. Instead, federal law could define the size of each court by setting new appointments to occur at some regular, fixed interval. The shorter the interval for a particular court, the more frequent would be appointments to that court, and the more judges would sit on that court at any given time (on average). Under such a system, the exact total number of judges on each court at any given time would fluctuate a bit, because these appointments at regular intervals would be entirely unaffected by when any sitting judges choose to leave the court.
The advantage of such a system is that it would completely eliminate the leverage federal judges currently have over the political branches, by removing judges’ power to grant (or revoke) the boon of an appointment opportunity. And unlike judicial term limits (another proposal that would lead to appointments at regularly intervals), such a system would retain judicial life tenure and thus could unquestionably be attained merely by statute, without the need for a constitutional amendment.
For multiple reasons, decoupling appointments from retirements would be easiest to accomplish at the district court level. At the Supreme Court level, any fluctuation in the number of sitting justices at a given time could significantly alter the balance of power (and when the total number of justices is an even number, there is a much greater likelihood of tie votes). At the circuit court level, fluctuations in the total number of active judges could likewise shift balances of power in en banc proceedings and could lead to temporary circumstances where an en banc court becomes so large as to be unwieldy.
But none of these concerns are present at the district court level, which makes that level the natural place to experiment with such a reform. District court judges preside alone, and there is no such thing as an en banc proceeding at the district court level. This means that fluctuating total numbers of active judges in any particular district would in no way affect the proceedings in any particular case. True, shifting numbers of judges can affect the odds of being assigned a judge of any particular ideology in a given district. But shifts in the total number of judges already regularly occur whenever one district judge takes senior status and another judge joins the court, or whenever a senior status judge fully retires. Finally, district judges can be temporarily reassigned to other districts with relative ease, making temporary fluctuations in particular districts less problematic from a workload perspective.
In addition, it would be relatively straightforward to “translate” the current statutory size of each district court into an appointment interval that would sustain that same approximate size (on average). The only variable Congress would need to know is the average total tenure of active federal district judges, a statistic that would be simple to calculate. If we suppose for the sake of easy math that the average such tenure is currently 20 years (likely a reasonable estimate), then Congress could simply define the appointment interval for each district court as one appointment every 20/N years, where N is the number of seats assigned to that district under current law. So a 5‑judge court under current law would switch to a court with an appointment every four years, a 10-judge court would see an appointment every two years, and a 20-judge court would see an appointment every one year.
Such a change would certainly be more drastic than an amendment to the judicial ethics code, and other practical difficulties could make it a less attractive option. Keeping each court at a reasonable number of judges for its caseload might require temporary judicial reassignments that last for years (or short-term statutory adjustments). When the Senate and presidency are controlled by different parties, this might result in appointments not being made at their scheduled times. Judges may remain in active service for longer, on average, if unable to influence their successors, and this may lead to unintended consequences. I do not claim to have fully worked out every potential issue, nor do I speak for any of my colleagues in suggesting that this option should be considered.
Rather, my point is to emphasize that Congress shouldn’t keep any options off the table at this stage, no matter how out-of-the-box. If explicit influence over the judicial selection process continues to emerge as a norm accepted among some judges, then it may be necessary to significantly rethink the inherent political power that the current system gives to sitting judges. The only way to ensure that judges stay out of the appointments process entirely is to remove their power to trigger that process in the first place.
