Bench Memos

Law & the Courts

Taking Senior Status—Part 1

Given my recent posts on senior-eligible judges, I figured that I’d provide some additional context and, in this post and the next one, discuss specifically the effect of a judge’s taking senior status.

Under the statutory Rule of 80, a judge becomes pension-eligible when the judge’s age plus total years of service on an Article III court (including district courts and, as I was recently reminded, the Court of International Trade) equals 80, so long as the judge is at least 65 and has served at least 10 years. Age and years of service are counted in full years, not fractions. (See 28 U.S.C. 371.)

A judge who has satisfied the Rule of 80 has three choices:

(1) The default choice is to continue in active service.

(2) The judge may choose to retire, in which case the judge will, “during the remainder of his lifetime, receive an annuity equal to the salary he was receiving at the time he retired.” (28 U.S.C. 371(a).)

(3) Or the judge may choose to take senior status. A judge in senior status may choose what caseload to carry. A senior judge who carries at least a one-quarter share of the work of an active judge receives the same annual cost-of-living salary increases that active judges receive. (28 USC 371(b), (e).)

In either option 1 or option 3, the judge is essentially working for free—apart from the annual cost-of-living increases in the judicial salary.

A vacancy is created when a judge retires or takes senior status. For purposes of a court’s judicial workforce, there is one big difference between the two options. When a judge takes senior status, filling the vacancy provides a net addition to the workforce (with that net addition equal to the senior judge’s continuing caseload). By contrast, when a judge retires, filling the vacancy merely restores the judicial workforce to its previous level.

In my previous posts setting forth the composition of each court of appeals by party of appointing president, I have counted only judges in active service. If you actually want to understand the odds of getting, say, a panel with a majority of appointees of presidents of one political party, you’d also want to factor in the senior judges (as well as visiting judges). But the courts keep confidential the caseload of each senior judge, so it’s impossible to know how much to count a senior judge (i.e., as a one-fourth equivalent of a full judge or as a full judge or as something else).

Overall, there are 78 sitting senior appellate judges who were appointed by Republican presidents and 37 who were appointed by Democratic presidents, so that’s a total of 115 sitting senior appellate judges. The total number of authorized appellate judgeships is 179. If the average senior appellate judge carries a one-third caseload, that would mean that senior judges are accounting for 17-18% of the overall appellate caseload. (The Administrative Office of the United States Courts says that senior judges, district and appellate combined, “typically handle about 15 percent of the federal courts’ workload annually.”)

The count of judges in active service is much more useful for en banc purposes. But it’s essential to emphasize again that party of appointing president is at best a crude proxy for judicial philosophy. (Also, some courts of appeals allow a senior judge who took part in the panel ruling to take part in the en banc proceeding.)

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