Threat of Increasing Rate of Judicial Retirements

by Ed Whelan

To follow up on the third point in my post on the Brookings report on Obama’s judicial confirmations, I’ll call attention to this long paper, “Leaving the Bench, 1970-2009: The Choices Federal Judges Make, What Influences Those Choices, and Their Consequences,” co-authored by law professor Stephen B. Burbank, federal judge S. Jay Plager, and Gregory Ablavsky.

The authors warn of the possibility that “increasing numbers of federal judges, at an increasing rate, will choose to retire upon becoming eligible or soon thereafter,” and they explain the dire consequences that such retirements would have for the capacity of the judiciary to handle its caseload. Among other things, they recommend that federal judicial salaries be increased to cover “some or all” of the cost-of-living increases that haven’t been extended to federal judges over the past two decades and that legislation make future cost-of-living increases automatic. Although I won’t claim to have digested the authors’ entire analysis, their recommendation strikes me as sensible, if not too modest.

Addendum: I learned of the above paper from this ABA Journal report.

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