Bench Memos

Law & the Courts

Re: A Surprising Circuit Court Vacancy

A quick follow-up to Jonathan Adler’s post about Fifth Circuit judge Gregg Costa’s unexpected decision to resign his seat: According to the Federal Judicial Center’s biographical directory of Article III judges, of the 200 or so federal appellate judges appointed since the Reagan administration who are no longer in active service, a total of eight have resigned, rather than retired with pension or taken senior status (or been elevated to the Supreme Court).

Five of the eight will probably be familiar to you:

Robert Bork resigned from the D.C. Circuit at age 60, in the aftermath of the defeat of his Supreme Court nomination, to pursue his scholarly interests.

Michael Chertoff was on the Third Circuit for less than two years when he resigned in 2005 in order to become Secretary of the Department of Homeland Security.

Michael Luttig, who was appointed to the Fourth Circuit at the age of 37, served on that court for nearly 15 years before resigning to become general counsel of Boeing. (Costa’s decision seems most similar to Luttig’s.)

Michael McConnell was on the Tenth Circuit for about seven years before returning to academia.

Kenneth Starr was likewise only 37 when President Reagan appointed him to the D.C. Circuit in 1983. Starr resigned six years later to become Solicitor General.

Two others are somewhat more obscure:

Robert Henry served on the Tenth Circuit for 16 years when he resigned to become president of Oklahoma City University.

Timothy Lewis was on the Third Circuit for around seven years when he resigned to pursue private practice.

And one, I confess, I had never heard of:

Emory Sneeden was appointed by President Reagan to a Fourth Circuit seat in 1984. He resigned less than two years later and died the following year at age 60.


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