Which Ninth Circuit Judges Were Waiting For A Democratic President to Take Senior Status?

James Phillips and I are working on an article about circuit judges who strategically time their taking of senior status.

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In February, several Ninth Circuit judges complained to the Los Angeles Times about the Trump appointees. Now, three, or possibly four Ninth Circuit judges have talked to the Times again–this time about members of the Court taking senior status with a Democrat in the White House.

The article begins:

For the last four years, some federal judges postponed retirement plans rather than give President Trump the opportunity to name more conservatives to the nation's powerful appeals courts. . .  .All eyes are now on nine active 9th Circuit judges appointed by President Clinton. They are in their 60s or 70s, and some have been waiting for a Democratic president so they can take senior status.

The first judge told the Times:

"I anticipate quite a few people doing things to enter senior status," said one of several 9th Circuit judges who predicted turnover.

The judge, however, added a caveat. "They might want to wait for a Democratic Senate, although I don't know whether that ever will happen."

That judge and others who spoke about possible turnover declined to be identified by name, saying they were unauthorized to speak for the court or their colleagues.

There is a dilemma. If the Republicans win one or two of the Georgia seats, then any vacancy could remain open for 2 years. If the Republicans win the Senate in 2022 the vacancy could remain open for 4 years. A judge could take senior status, contingent upon the confirmation of their successor. But that confirmation could happen with a Republican president. I suppose a judge could withdraw their notification to take senior status. Such a move would be brazenly political. But we are talking about the Ninth Circuit here.

The second judge told the Times:

A 9th Circuit judge noted in an interview that "Clinton judges across the country have just been holding on" for a Democratic presidency. They should make taking senior status contingent on Senate confirmation of a successor if Sen. Mitch McConnell (R-Ky.) remains majority leader, the jurist advised.

The judge expressed concern about McConnell "in light of his treatment of Merrick Garland's nomination, which I thought was a travesty."

The third judge told the Times:

A third 9th Circuit judge said politics may determine the number of Clinton appointees who take semi-retirement. "The real issue is going to be the Senate," the judge said. If Republicans retain the majority, the jurist said, moderate nominees may get through but liberals won't.

"And it is entirely possible that they [Senate Republicans] may go back to the blocking tactics they applied previously with Obama," the judge said.'

The article quotes another judge, who may be a fourth judge, but it isn't clear:

Among the Clinton appointees qualified to take senior status are 9th Circuit Judges Richard A. Paez, William A. Fletcher and Marsha S. Berzon.

"Would the Republicans let someone replace them with people similarly liberal?" a 9th Circuit judge asked. "I don't think so."

And, Erwin Chemerinsky is quoted:

Whatever the judges' inclinations, the outlook for an exodus will depend on which party controls the Senate, said Erwin Chemerinsky, dean of UC Berkeley's law school.

"I have certainly heard from some of the Democratic appointees that they would be inclined to take senior status with Biden winning," he said. "But if the Republicans control the Senate, they will want to make sure that the Republican senators will confirm Biden nominees."

James Phillips and I are writing an article about judges who strategically time their taking of senior status. By our count, there are eight Clinton appointees on the Ninth Circuit who are eligible for senior status. Six of them were eligible during the Obama administration, but held on. The other two became eligible in 2017 and 2018, respectively.

  1. Judge Richard Paez (eligible on 5/5/2012)
  2. Judge William A. Fletcher (eligible on 6/6/2012)
  3. Judge Marsha S. Berzon (eligible on 4/7/2013)
  4. Judge Ronald M. Gould (eligible on 11/22/2013)
  5. Judge Susan B. Graber (eligible on 7/4/2014)
  6. Judge M. Margaret McKeown (eligible on 5/11/2016) [Update: I forgot to include Judge McKeown on an earlier version of this list]
  7. Judge Johnnie B. Rawlinson (eligible on 12/16/2017)
  8. Judge Sidney Thomas (eligible on 8/14/2018)
  9. Judge Kim McLane Wardlaw (eligible on 12/26/2019) [Update: I forgot to include Judge McKeown on an earlier version of this list]

Three W. Bush-appointed judges on the Ninth Circuit are eligible, who did not take senior status during the Trump administration:

  1. Judge Milan Dale Smith Jr (eligible on 5/18/2016)
  2. Judge Consuelo Callahan (eligible on 5/28/2017)
  3. Judge Sandra Segal Ikuta (eligible on 6/24/2020)

One Obama-appointed judge will become eligible in 2022:

  1. Judge Andrew D. Hurwitz (eligible on 10/1/2022).

And in case you are curious, Trump's appointees to the Ninth Circuit will be eligible to take senior status between 2037 and 2044.

We hope to share our research, at least in a preliminary form, before the inauguration.

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  1. Is it possible or ethical for a Judge to make taking senior status contingent at all and especially on a nakedly political outcome?

    No doubt they can wait until the inauguration and start the process but any overtly political action would seem to undermine the courts credibility.

    1. C’mon, steinmetz.

      Political maneuvering of this sort is commonplace. Just recently McConnell was urging conservative judges to retire now, before Trump left office.

      1. You’ve got that right, Bernard

      2. bernard11…Yep, you’re right. No denying that.

    2. I thought there were no Clinton or Bush or Obama or Trump judges.

      I am almost cynical now.

  2. Of all the “power over principle” actions, the refusal to hear, vote and confirm ANY Democratic nominee to the federal courts is the worst.

    1. “hear, vote AND confirm”

      No, doesn’t work like that. It’s not a process which starts and must finish. All steps are optional. You may not like the result, but tough nougies.

      Mitch’s excuse for no vote was that Garland would have lost the vote, so why hold it? And if no vote, why hold a hearing?

      It takes two to tango. If Obama’s only goal was to get an approved nomination, he should have nominated someone more to the Senate’s liking. Apparently Obama thought it was better to virtue signal a nominee who could not win than a distasteful nominee who could win.

      1. No, I think that, if he’d been signaling and didn’t care, he’d have picked somebody considerably further left. He was trying to compromise, not so far left the Senate would reject, not so far right the left would be seriously ticked off.

        The problem is there wasn’t anybody occupying that space. Anybody he could have nominated who would have been confirmed would have pissed off his base.

        1. Anybody he could have nominated who would have been confirmed would have pissed off his base.

          Or McConnell’s base if the nominee was confirmed. You’re right that there was no one “occupying that space,” but that was because of McConnell’s position as well as Obama’s. Garland was a pretty conciliatory nominee.

          1. You mean “Democrats thought Garland was a pretty conciliatory nominee.”

      2. No, doesn’t work like that. It’s not a process which starts and must finish. All steps are optional. You may not like the result, but tough nougies.

        The point is not that the Senate Republicans didn’t have the power to deny confirmation to nominations made by Democratic presidents; obviously they did. The point is that there wasn’t a principled basis to do so – as the Senate has proven over a couple hundred years by frequently confirming judges nominated by a President of the other party to that which controls the Senate.

        It takes two to tango. If Obama’s only goal was to get an approved nomination, he should have nominated someone more to the Senate’s liking. Apparently Obama thought it was better to virtue signal a nominee who could not win than a distasteful nominee who could win.

        Garland was far from a “distasteful nominee.” He had been confirmed to the DC Circuit by a majority-Republican Senate. The talk at the time was that McConnell didn’t want hearings precisely because he was afraid that he would be confirmed after the public saw the hearings.

        1. No, you failed to understand. History shows many times where distasteful nominees got bupkis. Garland was nothing unique.

          Garland was in fact a distasteful nominee, as shown by the only thing which mattered, the Senate’s reaction. You may have liked him, Obama may have liked him, some Senators may have liked him … but the Senate as a whole did not. Therefore he was distasteful in the only sense that mattered.

          1. Turns out Trump was a distasteful candidate. A bigot of your caliber probably will never understand why he was a failed president, but your betters understand, and that’s what counts.

        2. “The point is that there wasn’t a principled basis to do so”

          The constitution does not require that the Senate have a principled basis for rejecting a presidential nominee (to any office).

          If the Senate decides that they will reject all nominations made on any day other than the first Monday of the month, that’s their purgative to do so.

        3. 29 times there has been a Supreme Court nominee in an election year, and every President has nominated someone for that see – all 22 Presidents that had the chance, ranging from George Washington to Barack Obama.

          10 times, the Senate was held by a party opposite the President. 9 times, the Senate declined to confirm the nominee.
          19 times, the Senate was held by the same party as the President. 16 times, the Senate confirmed the nominee.

          In other words, despite your false claim, the “couple hundred years” of precedent actually show the opposite: The Senate will vote to confirm it’s own party nominees but not the other parties.

    2. Also interesting that you only apply your “principle” to Democrat nominees. I recall there have been Republican nominees who Democrats have refused to proceed with.

      Your partisan slip is showing.

      1. Educate me. Who were the individuals nominated by a Republican president for the SC that did not get a hearing or vote from a Democratic Senate? Of course a nominee may be rejected via a vote of the Senate, but that’s not what I’m speaking about,

        1. OK, education commences:

          the refusal to hear, vote and confirm ANY Democratic nominee to the federal courts is the worst.

          You changed from “the federal courts” to “the SC”.

          You changed from “ANY Democratic nominee” to bringing in Republicans.

          Sorry buster. That’s two goal posts moved in one comment.

          1. I recall there have been Republican nominees who Democrats have refused to proceed with.

            OK, who and when?

  3. “And it is entirely possible that they [Senate Republicans] may go back to the blocking tactics they applied previously with Obama,” the judge said.

    Oh yes, it is entirely possible.

    The aim will to flip, if possible, who is eligible to vote to take en banc.

  4. Based on the odd headline: Why would a president take senior status, and why would federal judges wait for this?

    1. Because the President has a fixed term that ends on a date certain?
      Federal Judges are appointed for life.

      1. You want to take another crack at that one, rsteinmetz?

        (The Might Max Weinberg gets another crack at 4:50, although I’ve never believed he needed it)

        1. The intent seems understandable to me even if the wording can be read in various ways.

          But they that what lawyers do and I’m not one.

          1. “But they that what lawyers do”

    2. This is exactly how I read the headline. “Wait, presidents can take senior status?”

  5. You are missing Judge McKeown from your list. 15 years of service and 65 years old means every judge appointed by Clinton. Sidney Thomas is the youngest active Clinton appointee.

    I’m not sure why any of this is a surprise. Taking senior status under a president who is more likely to appoint someone who aligns with your jurisprudence is a long-standing consideration. Anyone who is 70+ would be crazy not to consider it assuming a successor nominee can be confirmed. If this is “brazenly political” then that describes 90%+ of federal circuit judges.

    1. The brazenly political part is saying it out loud or considering putting some kind of explicit condition on taking senior status.

      People were urging RBG to retire during the Obama Administration so he could appoint her rejected those calls. She rejected those suggestions.

      1. She rejected those suggestions because she wanted the first female President to appoint her successor, according to more recent reports. She gambled and lost, not took a principled stand on the matter.

        1. I’ve commented on this before. While I agree that Ginsburg gambled on not retiring, it’s hard to emphasize how much the rules-on-the-ground changed on her so quickly. It went from “maybe we’d filibuster Diane Wood but probably not because we would need every single Republican” in 2010 to Reid nukes the filibuster in 2013 to Republicans take control of the senate in 2014 and will play hardball up to and including blocking Garland. There was no way Ginsburg could have known that the delaying from 2012 to 2013 would be change from “if I retire my replacement won’t be quiet as liberal as I am” to “if I retire my replacement isn’t going to be confirmed.”

  6. Remember, only Republican (conservative) judges violate the spirit of our constitutional system to wait for an administration and/or senate that is favorable to replacing them with a like minded jurist.

    When liberals do it, the practice is fine, even encouraged. The seat “belongs” or is “owned” by the previous occupant and for some reason we have to fill it with someone just like that person. (See how the media referenced “Ginsburg’s seat” for a great example, but how no such reference was made to “Scalia’s seat”.)

  7. It should be illegal to retire as a judge. Commit for life as a servant or pass. Pick your poison.

    Yes… mostly hyperbole. But there is some truth to the sentiment. Remove the ability to be partisan and people won’t be partisan in that regard because they can’t be.

    1. They don’t “retire” as a normal person thinks of that word. Once they take “Senior Status”, they are still judges, they just have reduced dockets and continue to hear and decide cases.

      1. I think this may be implicit in your answer, but federal judges can also “retire” as a normal person thinks of that word. Upon reaching age 65, an Article III federal judge whose age and years of federal service equals 80 or more may simply retire at full pay or take senior status and continue to hear cases albeit at a reduced rate, which also entitles the judge to full pay.

    2. A better response would be to mandate that a President gets a certain number of nominations to each circuit court and SCOTUS every term, disallow replacements upon death or retirement, and let the size of the courts float.

      That removes all of the incentive to retire strategically and would lead to the courts – as they should – generally reflecting the philosophies of those elected officials who appoint and confirm judges.

  8. Nice to know we have an independent judiciary and not a partizan one.

  9. I’m struggling to understand the point of this post. It’s hardly news that judges on the circuit courts and SCOTUS generally want their replacements appointed by a President of the same party as the one who appointed them. It’s generally not even criticized by either Republican or Democratic Senators or Presidents; sometimes, as with Obama and RGB and McConnell this year with circuit court judges, it’s actively encouraged.

    Why is this suddenly an issue with this particular circuit court?

    1. ” I’m struggling to understand the point of this post. ”

      We’re watching a fledgling clinger, in real time, learn about the world from which he is disaffected.

  10. “There is a dilemma. If the Republicans take win one or two of the Georgia seats, then any vacancy could remain open for 2 years.”

    Sorry to say, that is naive. Republicans will do what they have always done for the court of appeals nominees by Democrat Presidents. The Republican Senators will bend over and grab their ankles.

  11. What is a senior judge?
    The “Rule of 80” is the commonly used shorthand for the age and service requirement for a judge to assume senior status, as set forth in Title 28 of the US. Code, Section 371(c). Beginning at age 65, a judge may retire at his or her current salary or take senior status after performing 15 years of active service as an Article III judge (65+15 = 80). A sliding scale of increasing age and decreasing service results in eligibility for retirement compensation at age 70 with a minimum of 10 years of service (70+10=80). Senior judges, who essentially provide volunteer service to the courts, typically handle about 15 percent of the federal courts’ workload annually.

    https://www.uscourts.gov/faqs-federal-judges

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