Bench Memos

NRO’s home for judicial news and analysis.

Judicial Vacancies, Nominations, and Pensions


The recent announcement by Third Circuit Judge Franklin S. Van Antwerpen that he will take “senior status” on October 23, 2006, provides a useful lesson in the effect of the judicial-pension system on judicial vacancies and nominations.

Under federal law (28 USC 371), a federal judge may retire or take senior status (which allows a much reduced caseload and which creates a vacancy for an “active” seat)—and continue to receive his full salary—when he has satisfied these three requirements: (1) he has reached the age of 65, (2) he has served as a federal judge for at least 10 years, and (3) his age and years of service (each in whole numbers) combined equal or exceed 80. Not coincidentally, Judge Van Antwerpen turns 65 on October 23, 2006. He already has 18 years of judicial service under his belt, so he also already satisfies the second and third requirements.

There are plenty of other factors that affect a judge’s decision to retire or to take senior status, but anyone wondering about potential new vacancies on a court should take a look at who is, or will soon be, eligible for senior status. The Federal Judicial Center’s Biographical Directory of Federal Judges is a good source of data (though it only includes year, rather than date, of birth).

Once active judges are eligible to retire or to take senior status, they are essentially working for free. (I had previously thought that retired or senior judges did not receive the benefits of any subsequent salary increases for their positions, but my cursory reading of the applicable law indicates that they do. If anyone out there can confirm or refute me on this point, please do so.) Indeed, six of the current Supreme Court justices—Stevens, Scalia, Kennedy, Souter, Ginsburg, and Breyer—are essentially working for free (though for a number of them it’s a fair question whether the value of services rendered exceeds their effective compensation).

Judge Van Antwerpen was elevated to the Third Circuit from his district judgeship less than two years ago. It is highly likely that the White House was fully aware that he would take senior status at the first opportunity. One interesting question, then, is why President Bush went to all the trouble of nominating an appellate judge who would serve in active status for such a short time. My strong suspicion is that Senator Specter pushed hard to get Judge Van Antwerpen the extra status (and slightly larger salary) that federal appellate judges enjoy. If so, his appointment would be yet another illustration of how senatorial patronage disserves the greater public interest in having quality judges on the bench for a long time.


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