The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

More Judges Talk to the Press About Timing of Taking Senior Status

At least one Clinton appointee is waiting to see the Senate breakdown before stepping down.


Recently, several Ninth Circuit judges talked to the L.A. Times about taking senior status now that there is a Democrat in the White House. Now, several judges have talked to Buzzfeed about the same topic. Some of the judges spoke on the record. And others off the record.

First, a Clinton-nominated circuit judge spoke off the record:

"If Democrats get the Senate, I would take [senior status] maybe at the end of January, might hold off until April," said a Clinton-nominated federal appeals judge who was eligible to take senior status under Trump; the judge requested anonymity because ethics rules restrict judges from speaking about politics. "If they don't get the Senate, it will depend on what kind of deal is worked out between the president and the Senate."

The judge explained that if Democrats didn't win the Senate and they couldn't have "confidence" in the qualifications of their successor, they were prepared to stay put as an active judge for two more years. But the judge said they wouldn't wait indefinitely, given the possibility of McConnell holding up Biden nominees before the 2024 election as he did during Obama's final years in office.

"I'd have to go in two years," the judge said. "I could be locking myself into a life on the bench."

Chief Judge John Jones III (MDPA) did not take senior status, in part, because he was next in line to become Chief Judge. He also opened up about the qualifications of Trump nominees.

US District Chief Judge John Jones III, who was confirmed under George W. Bush, became eligible for senior status when he turned 65 this summer. He said that last year a Senate aide — he declined to identify the aide or the senator, but said it was "really an emissary from the president" — approached him and "reminded" him that he could open up his seat for Trump. Jones said he declined, citing the fact that he was next in line for chief judge, a job that he took over in the spring.

District judgeships tend to be less politicized than appeals court nominations, but there are occasionally fierce partisan battles over those seats. Jones said he has no plans to leave now that he's chief judge, but said the party of the president wouldn't control his decision, and he knew from conversations with colleagues that other judges felt the same way.

"I wouldn't have any hesitation whatsoever" about stepping down under a Democratic president, Jones said. "Elections mean something, presidents nominate people. I've been at this 18-plus years, and I think you have to do what's right for your court and what's right for yourself at the appropriate time."

The Trump administration prioritized tapping young judicial nominees with strong conservative credentials. Jones had positive things to say about the new additions on his court but said generally that he was "concerned" by the lack of practice experience of some of Trump's district court nominees, and hoped Biden would take a different approach.

"I would hope that, and I think this will be true in the Biden administration, they'll be a little bit more circumspect — not criticizing any single appointee by President Trump, but you want to give a nod to experience. Relative youth is OK, but particularly in the trial bench we need able people who have experience," Jones said.

Third, we hear from Judge Kanne, a Reagan nominee to the Seventh Circuit. He announced that he would take senior status during the Trump administration, but that plan fizzled out:

Judge Michael Kanne, who was confirmed to the 7th Circuit under then-president Ronald Reagan in 1987 and has been eligible to take senior status since 2003, said he didn't have plans to leave but wouldn't rule out stepping down under a Democratic president.

"I wouldn't say it's a deal breaker," the 82-year-old Kanne said. "The main reason I'm staying on and I didn't take senior status earlier when it was available was I'm in relatively good health. It gives me a purpose and I like what I do and I think I can add something to the work of the court. So the fact of the political aspect of it might have something to do with it, too, but it's only part of it. I don't say, 'Oh, well, we've got a Democrat in the office now, and I'm never taking senior status because of that.'"

The Trump administration unsuccessfully tried to fill Kanne's seat. At the start of 2018, Kanne agreed to take senior status based on an understanding that Trump would nominate Kanne's former clerk Tom Fisher. But a few months later, Kanne's name disappeared with no explanation from the judiciary's public list of vacancies. Contacted by BuzzFeed News at the time, Kanne revealed that he was staying on because Fisher was no longer in the running, and the judge had no interest in leaving his seat open for just anyone; Politico later reported that Vice President Mike Pence had scuttled the nomination.

Kanne said the prospect of a Democrat potentially winning the White House in 2020 didn't change his mind about staying on after Fisher's nomination fell through.

"I'm more, I guess, selfish in the sense that I enjoy what I do and I don't have any real hobbies," he said.

Fourth, Judge Leslie Southwick (CA5) went on the record:

"My answer to whether I believe senior-eligible judges are in fact being urged to do the right thing and make room for the kind of exceptional judges being selected now is: Believe in it? I've seen it … or, at least, heard it. I just did not find it a sufficiently encouraging idea in my case," Southwick wrote. "It was my impression that the person urging me and the individual who talked to another colleague were prompted from Washington. I did not ask, though."

Asked to elaborate, he said in a phone interview that he simply wasn't ready to give up the work of being an active judge. Asked if the politics of the president would affect his decision-making when he did feel ready to step down, he replied, "not particularly."

"I would certainly be aware of who the president is and the kind of judges that person is selecting," Southwick said. "But it wouldn't weigh very heavily on me."

Judge Southwick cited me in the referenced article:

The administration itself has apparently encouraged some judges to take senior status. Evidence of that came a few months after Don McGahn resigned as White House Counsel in October 2018;525 when he told the Houston chapter of the Federalist Society that circuit judges should retire in order to create more vacancies.526 Further, a South Texas College of Law professor, Josh Blackman, who is a widely followed commentator, has recommended retirements.527 Professor Blackman wrote in advance of the possible loss of a Republican Senate majority in the 2018 midterms, which did not happen.

My general sense is that judges should not say something privately that they would not say on the record. Indeed, I do not see why judges should talk to reporters at all, but that ship has sailed.