Bench Memos

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Clinton’s Appellate Appointees


I recently noted that I was surprised to discover how many Clinton federal appellate appointees are still in active service—58 out of Clinton’s total of 65 lifetime appointees.  That’s one more than President George W. Bush’s total of 57 still in active service (which total includes three Clinton nominees whom Bush renominated and appointed).  I would have expected much higher attrition among the Clinton appointees over the years, especially among the 30 whom Clinton appointed in his first term, from 1993 through 1996. 

The most relevant point of comparison for these 30 Clinton appointees would appear to be the second-term Reagan appointees, 50 in number.  For both sets of appointees, the presidential term in which they were appointed was followed by another term by a president of the same party (the same president, Clinton, for the Clinton appointees, Bush 41 for the Reagan appointees), then eight years of an opposite-party president—the very period during which most of those who were in their 50s (or older) when appointed would become eligible for senior status.

Of the Reagan set, 20 judges—40%—took senior status during the Clinton presidency.  For the Clinton set, three judges—10%—have taken senior status or retired during the Bush 43 presidency. In other words, the voluntary attrition rate of the Reagan set during a comparable period was four times as high as that of the Clinton set.  (The involuntary attrition rate, through death, was roughly the same for both sets.)

What might account for this striking difference?

One possibility, of course, is that I may have the data wrong.  I don’t think there are any big errors, but if anyone sees any mistakes, big or small, please let me know.

Another possibility is that the Reagan appointees were disproportionately early in their eligibility to take senior status under the so-called Rule of 80, because of older age at the time of appointment or previous service as district judges.  Age doesn’t appear likely to be a significant factor: According to a table compiled by Sheldon Goldman in Judicature, the average age of Clinton appellate appointees (51.2) was slightly higher than that of Reagan appointees (50.0).*  That’s aggregate data across all eight years of appointments for each president, so it’s possible that the data for the two subsets I’m focusing on would show a different picture, but it doesn’t seem likely that the difference would be big. 

Another possibility is that the Clinton appointees, for whatever reason, find being in active service more satisfying than the Reagan appointees did. (Perhaps there’s a general difference along this dimension between a president’s first-term appointees and his second-term appointees.)

There are lots of other possibilities.  Among them is the possibility that the Clinton appointees found it less congenial to have their successors appointed by President Bush than the Reagan appointees did to have their successors appointed by President Clinton.  I don’t know of any evidence that might bear on that speculation.  I also hasten to add that I think it’s widely accepted that it’s proper for judges to take such a consideration into account, and I don’t mean to suggest that I believe otherwise.

In a follow-up post, I’ll offer some related observations on the so-called vacancy rate on the courts.

* I thank Russell Wheeler of the Brookings Institution, a real expert in this area, for providing me Goldman’s table and other information that I’ve drawn on. (Any errors are my own.)

Tags: Whelan


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