The Volokh Conspiracy

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More Judges Take Senior Status In The Week After Inauguration

We are seeing more evidence of strategic timing.


Yesterday, I blogged about a handful of judges who announced they would take senior status shortly after the inauguration. Today, Law360 reports on more judges who have decided to step down from active service. Here, I will indicate when each judge became eligible for senior status, based on my calculations:

  • Judge Phyllis J. Hamilton (NDCA)—2017
  • Judge Jeffrey S. White (NDCA)—2014
  • Judge William H. Alsup (NDCA)—2012
  • Judge Catherine C. Blake (DMD)—2015
  • Judges Richard D. Bennett (DMD)—2015
  • Judge Ellen L. Hollander (DMD)—2020
  • Judge Ursula Ungaro (SDFL)—2016
  • Judge Dan Aaron Polster (NDOH)—2016
  • Judge Victoria A. Roberts (EDMI)—2016
  • Judge B. Lynn Winmill (DID)—2017
  • Judge Michael W. Mosman—He will turn 65 in December 2021
  • Vanessa D. Gilmore—Will leave the bench when she turns 65 in October 2021

Law360 offers some commentary on the rash of retirements:

"They're just dropping like flies," said Carl Tobias, a University of Richmond law professor who tracks judicial nominations.

Nine of the 13 retiring judges were appointed by Democrats — eight by Clinton and one by President Barack Obama. Of the four GOP appointees, three were confirmed when their states had at least one Democratic senator whose support would have been required under Senate traditions.

The flurry of transitions so soon after Biden took office suggests some judges may have been waiting out President Donald Trump: Ten of the 13 judges have been eligible for senior status since at least 2017.

In my forthcoming article, I am considering how to measure the ideology of the judge who takes senior status. The ideology cannot be measured solely on the basis of the appointing President. Because of factors like blue slips and the (former) judicial filibuster, a nominee may be quite distant from the appointing President's ideology. For example, a George W. Bush nominee in a double-blue state (with two Democratic senators) may be closer to a Clinton nominee in a double-blue state.

Leading Democrats suggest that these judge declined to step down because they didn't approve of the sorts of judges Trump would appoint in their stead:

Senate Majority Leader Chuck Schumer, D-N.Y., suggested as much Monday on MSNBC.

"There will be lots of vacancies that come up," he predicted. "I think there are a lot of judges, Democratic appointees who didn't take senior status while Trump was president, who now will."

Sen. Sheldon Whitehouse of Rhode Island, a senior Democrat on the Judiciary Committee, said Wednesday that he thought judges delayed retirement plans because Trump named unqualified lawyers with ideological credentials, in his view.

"I have to believe that there were some judges who looked around at the pool of Trump nominees and, setting aside their political persuasions, thought … 'We can do better than this gong show of political clowns,'" Whitehouse said on a panel with the liberal Alliance for Justice.

Stay tuned. I will continue to track this issue.