In my new Confirmation Tales post, “Judicial Retirements and Judicial Vacancies,” I examine the federal statute that governs judicial retirements and explain its so-called Rule of 80. I also look at the competing incentives that judges face in deciding whether to fully retire, take senior status, or remain in active service. An excerpt:

Let’s consider some of the reasons that a judge might decide to stay in active status.
A judge might remain in active status if he is concerned that the president will replace him with a successor of a very different ideology. One recent study concludes that “judges eligible to take senior status are today—more than ever before—deciding to do so in a politically strategic manner.”
On appellate panels, the judge in active status with the most seniority presides over oral argument, leads the discussion at conference, and assigns opinions. (A circuit’s chief judge is always deemed to have the most seniority.) An appellate judge who meets the Rule of 80 is likely to be the presiding judge on most of the panels on which he sits and, after years in which he was much more often a junior member of a panel, might be reluctant to give up the influence of that position.
For appellate judges, another reason to prefer active status is to be able to take part fully in the court’s en banc deliberations. Circuit rules and practices vary—from little to none—on the role that senior judges can play in en banc matters.
This en banc consideration is intensified if the judge worries that the appointment of his successor might have the effect, immediately or eventually, of tipping the balance of the court in the other direction. A judge who has this concern will be inclined to defer a decision to take senior status or to retire until a more simpatico president is in office….
In an article on senior status, senior federal judge Frederic Block speculates that there are also some judges who are “psychologically challenged” to remain in active status: “There are those who simply have a difficult time accepting the label ‘senior’ as compared to ‘active.’ … These judges somehow feel that they will become lesser judges.”
Relatedly, a judge might fear that by taking senior status he will become less attractive to future law clerks or be perceived by others as being in decline.

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