The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
- Judge Richard Paez (eligible on 5/5/2012)
- Judge William A. Fletcher (eligible on 6/6/2012)
- Judge Marsha S. Berzon (eligible on 4/7/2013)
- Judge Ronald M. Gould (eligible on 11/22/2013)
- Judge Susan B. Graber (eligible on 7/4/2014)
- Judge M. Margaret McKeown (eligible on 5/11/2016) [Update: I forgot to include Judge McKeown on an earlier version of this list]
- Judge Johnnie B. Rawlinson (eligible on 12/16/2017)
- Judge Sidney Thomas (eligible on 8/14/2018)
- 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:
- Judge Milan Dale Smith Jr (eligible on 5/18/2016)
- Judge Consuelo Callahan (eligible on 5/28/2017)
- Judge Sandra Segal Ikuta (eligible on 6/24/2020)
One Obama-appointed judge will become eligible in 2022:
- 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.