Bench Memos

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More on Judicial Vacancies, Nominations, and Pensions


Here’s a follow-up to my post from a couple weeks ago: A quick and under-inclusive search of Republican-appointed court of appeals judges who are eligible to take senior status or retire (or, in the case of the asterisked names, who become eligible whenever their birthday—number 65—occurs in 2006) and who would thereby create a vacancy that President Bush could fill yields the following list of 26 judges:

First Circuit: Boudin, Torruella
Second Circuit: Walker
Third Circuit: Roth, Scirica
Fourth Circuit: Niemeyer*, Widener
Fifth Circuit: Davis, DeMoss, Higginbotham, Jolly, Wiener
Seventh Circuit: Flaum, Kanne, Posner, Rovner
Eighth Circuit: Arnold (Morris)*, Loken, Wollman
Ninth Circuit: O’Scannlain, Rymer*
Tenth Circuit: Kelly
Federal Circuit: Lourie, Mayer*, Michel*, Newman

I do not include in this list Judge Selya, who has already announced that he will take senior status.

The primary respect in which this list is underinclusive is that it does not include judges who were appointed by a previous Republican President to the district court and who were elevated by President Bush to the court of appeals (and who are 65 or older and have at least 15 years of total judicial service).

Some might worry that if these judges were to take senior status, the politics of Senate confirmation might leave their vacated seats empty. But one way to limit this problem would be for a judge to state that his taking senior status will be effective on the date that his successor’s nomination is confirmed. (As Justice O’Connor’s contingent resignation illustrates, there’s no need to have an actual vacancy before a successor is nominated and confirmed. The vacancy needs to precede only the President’s post-confirmation appointment of the nominee to the seat.)

I welcome any corrections or additions to this list.


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