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.

Comments

[edbeau99]

Not much more than 2 years ago, Trump was savaged by the media for referring to a single judge as an "Obama judge". This Democratic Senator calls all the judges appointed by Trump "a gong show of political clowns" and not a peep from the media. Not even the slightest pretense that there isn't a radically different standard for what Democrats say.

[Cal Cetín]

Yes.

A trip down memory lane:

"Chief Justice Roberts rebukes Trump's 'Obama judge' complaint"

Roberts: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges” “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them."

Does this group of dedicated judges include the gong show clowns?

https://www.foxnews.com/politics/chief-justice-roberts-rebukes-trumps-obama-judge-complaint

[Cal Cetín]

Also covered on this very blog:

https://reason.com/volokh/2018/11/22/hail-to-the-chief/

[Don Nico]

Of course Whitehouse is as ideological as they come.
None of them on either side of the spectrum like to admit when they decry Obama judges or Trump judges or refer to either as political clowns, they are gravely damaging the Judiciary branch by undermining public confidence in the Courts.
The are the political clowns and they should be ashamed of themselves.

[ME2R]

Which just suggests that Trump was right - judges are not impartial, rather they represent their political party in their decisions. So I guess there are Trump judges and now Biden judges. The Biden adm wanting to investigate Supreme Court packing further evidences judicial impartiality.

[WRD]

Specifically, what is "this issue"?

[Darth Chocolate]

The issue is that this confirms the judiciary is just another partisan clown show that values ideology over impartial interpretation of the law.

[Sarcastr0]

This practice has been going on for ages. It was news when Justice White didn't do it.

[Bob from Ohio]

" practice has been going on for ages."

Partially true as is every Gaslighto comment these days.

They didn't do it the first week after the change of party. Its the blatant political nature that Darth is referring to.

[Sarcastr0]

I'm really not sure why that distinction matters.

Especially to you, who has never been one to care much about cosmetics.

[Armchair Lawyer]

The issue is, the judiciary branch is supposed to be impartial and nonpartisan. Instead, we have some judges specifically picking certain times to step down, in order to help select their replacements (or ensure a specific party selects their replacement)

Because judges can decide when to step down, this can severely skew the judiciary branch. Let me demonstrate.

Imagine a system where the "Blue" party and the "Red" party switch power every 4 years. In addition imagine a fictional Judiciary with 50 "Blue" and 50 "Red" judges. These judges are supposed to be impartial. They take senior status and are replaced at random, but regular intervals. Roughly 20 judges retire every term (4 years). In such a system, the judicial balance would be roughly representative of the legislative balance.

But then imagine the "Blue" judges all delay taking retirement, until a "Blue" government takes power. The "Red" judges continue as normal. They think it's still an impartial balance. What happens is you would see a shift in that balance. After the first time, it would be a 60-40 blue-red balance. After the second time, it would be a 68 - 32 Balance. Even if the red judges "caught on" here it wouldn't help. The judiciary branch would still be strongly skewed compared to the power balance as a whole.

[Sarcastr0]

This is just conveniently timed outrage. And your hypothetical imbalance is not in evidence. Because this has been a common practice since WW2. Like, it was common knowledge in my Supreme Court seminar in law school back in the Bush years.

A previous comment thread noted how Republican judges did it under Trump, and no one including Blackman cared to start tracking that issue.

[Armchair Lawyer]

Ancedotes are nice, but data is better.

https://ballotpedia.org/Federal_judges_on_senior_status

And we see a Spike for Obama....but not really one for Trump

[MDJ23]

Ah, the chart stops in 2017.

[Eric Rasmusen]

Useful chart. It does seem that judges retired when Clinton and Obama were in office, especially right after they won elections, but not when George W. Bush was in office, or in the year after Trump took office. Democrat-favoring judges are political, but not Republican-favoring ones.
It would be interesting to see how many of the Democrat-favoring judges were appointed by Republican presidents.

[Don Nico]

"Because judges can decide when to step down, this can severely skew the judiciary branch."
There is no need to demonstrate. It is a feature not a bug.

[arpiniant1]

Oh, are you seriously pissed off that traitortrump did not get to pack even more judges?
That McConnel did not get the chance to ram more idiots and fools into lifelong positions?

Get over it

[Rossami]

Am I wrong in remembering you being outraged when Trump called Tigar an "Obama judge" in response to that asylum decision?

As I recall, you and everyone else were up in arms about the accusations of politicization of the judiciary. If "Obama judge" was an unfair criticism then, it's certainly fair to criticize judges now when they demonstrate that they are politically motivated.

[damikesc]

Hard to argue it is a problem for idiots to be put in lifelong positions given Obama's SCOTUS nominees and all...

[Don Nico]

Trump did not pack any judges. Learn American lexicography.

[DaivdBehar]

No one who has passed 1L should be allowed on any bench. The two jobs are not the same, nor related. Judge schools should be started. They would admit older students, late 30's or older, who have suffered a little. Two years would be spent studying judging, with the number one message being, apply the law, do not make the law. The third year would be spent judging cases under supervision.

They could have a judge license, not a lawyer license. All immunities would be cancelled. They should be sued for deviating from judge professional standards of due care, according to expert testimony. That means, a wrongly convicted defendant could sue, not for the mistake, but only for deviations from practice that caused the mistake. He could sue the legislature for poor wording of law that resulted in the error, if the judge applied it properly.

[Rossami]

With one adjustment, I like it. The adjustment would be to cancel most immunities but not all of them. Some counterbalancing control is necessary to prevent infinite do-loops. That is, the first case leads to litigation about the case leads to litigation about the litigation leads to .... Absolute immunity serves that purpose today but a more limited immunity could still serve that purpose.

But I'd trade even that for a working "loser pays" system. Loser pays would also stop the infinite do-loop.

[Sidney r finkel]

We are definitely looking forward as to how Prof. Blackman can or will determine the ideological predilection of inferior court judges. There are a lot of complications; for example these judges are, for the most part, bound by precedents decided at the Supreme Court level and so are limited in how they might apply their personal biases.

And surprise, surprise, a lot of judges seem to have some sort of integrity, where they apply the law regardless of how they may personally believe, as shown in the recent rejections of Trump attempts to judicially overturn the 2020 election.

And finally, there is the question of what is conservative because so many of the so-called conservatives are turning against what is really conservative principles. For example, the Constitution is clear that the executive branch can only spend money authorized and appropriated by Congress, but the so called conservatives had no problem with Trump spending money on a border wall even after Congress had voted on that and refused to authorize on appropriate the funds. Was that consevative?

One likely thinks that Prof. Blackman has an impossible task, but let's see what he comes up with.

[Don Nico]

"And surprise, surprise, a lot of judges seem to have some sort of integrity, where they apply the law regardless of how they may personally believe"

Here I agree with you sidney, and everyone who proclaims otherwise is damaging our judicial system and can wear the badge of the political clown.

[Eric Rasmusen]

“And surprise, surprise, a lot of judges seem to have no integrity, and apply the law because of what they personally believe”

Also true, and true to such a degree that we need to stop thinking of the judiciary as nonpartisan-- at least as far as liberal judges go. Indeed, why would we expect anything but partisanship from someone who is not an originalist?

[Rev. Arthur L. Kirkland]

Reading Prof. Blackman's contributions reminds me of my efforts to assess JoJo Rabbit.

I eventually developed a bit of sympathy for the kid.

[ReaderY]

What’s interesting here is that the various rulings in the election cases suggest the Trump appointees were very far from “political clowns.” In delegating selecting political appointees to the Federalist Society, Trump ended up with people who were vary far from loyalists. I suspect he didn’t grasp point when he started his lawsuits and simply assumed that at least some of the many lawsuits his circle filed would doubtless reach sympathetic judges inclined to believe his side of things and rule in his favor. I suspect it was a shock when so many of his appointees ruled against him.

For Democrats to not recognize this - to not be able to distinguish philosophical disagreement from corruption - is a grave weakness on their part.

[Rev. Arthur L. Kirkland]

The Democrats with whom I converse did not object to Kathryn Kimball Mizelle for fear she was a Trump loyalist -- the problem was her lack of achievement, her diminished preference for reason, her lack of experience, and (most important) the point that she was selected mostly for her expected devotion to stale, ugly ideology.

Judge Mizelle was far from an exception during the Trump administration. The Federalist Society seems to have feared that it would not get another chance for quite some time. Latching onto Trump was not the move of a confident player.

[Don Nico]

Smear, smear, smear. What can one expect from a drinker of skunked beer.

[WillDD]

Can't decide whether that Bozo Whitehouse shouldn't have any right to call someone else a clown or whether it's a "takes one to no one" situation.

[Don Nico]

Whitehouse was a tough prosecutor; he is a bozo pol.

[Eric Rasmusen]

What has shocked me now is how blatantly political these judges are. I can understand choosing to retire when you think there is a President who will choose a successor you think will be good. That is what has been common. What is shocking is if a judge does it blatantly. Suppose a judge said, "Great, I've been waiting years to retire because I'm really too old to do a good job, but I've been waiting for a Democrat to be President because I'm a Democrat." That, in effect, is what these judges have done. They should have waited a decent amount of time before stepping down. Appearances do matter.