The Volokh Conspiracy

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Judge Droney Explains Politics "Plays Some Role" In Senior Status Decision

The former Second Circuit Obama appointee, who retired during the Trump Presidency, said he "had some role in the appointment of [his] successor."


In 2012, President Obama appointed Judge Christopher Droney to the Second Circuit. In 2020, when he turned 65, Judge Droney retired outright. He didn't take senior status. He was one of the few non-conservative Democratic-appointed circuit judges who stepped down, allowing President Trump to appoint his replacement. (There were several conservative Clinton appointees who stepped down over the last four years). Alison Frankel of Reuters interviewed Judge Droney, and asked him how politics factors into the decision whether to take senior status. Here is a transcript of his remarks:

FRANKEL: Judge, we've seen a rash of announcements since President Biden took office from judges saying that they're going to step down or take senior status. How much does politics come into these decisions? You were appointed to both the trial court and the appeals court by Democratic presidents. But you stepped down during a Republican administration.

DRONEY: Well, I think it plays some role, especially in the last four years because the Senate under (Majority Leader Mitch) McConnell appointed so many federal judges. But in my case, I didn't have to worry about it as much because I had some role in the appointment of my successor (William Nardini). He's a terrific judge and is a mainstream judge and not someone that I think the public would worry about.

But certainly in the last four years it's been much more political, and I think that the real reason … was (getting rid) of the requirement that there be 60 votes to confirm. All you need now is 51. So that's really what drove the train the last four years.

FRANKEL: Do you think that there were judges who held off on retiring or taking senior status after the filibuster rules changed for judicial appointments because of political considerations?

DRONEY: Sure, I know of at least one who held off for a while and she just took senior status right after the new president was sworn in.

FRANKEL: We've seen on the Supreme Court that there starts to be some pressure for justices to step down when a particular political party is in power. Is there the same kind of pressure on appellate judges, in particular, knowing how many appointments were filled in the last four years?

DRONEY: I'm not aware of any senators calling into the 2nd Circuit, suggesting people go senior.

FRANKEL: What would the response be? Would judges just be like, "Come on. Get out of here"?

DRONEY: Well, it depends on the individual and how close they are to the particular senator. I think you'd be polite, but you'd say, "I understand your point of view, Senator, but you know I've got my own decision to make. Thanks for your input."

I don't think there's any pressure that anybody can bring on judges to take senior status or retire.