Bench Memos

Law & the Courts

Taking Senior Status—Part 2

Let’s now examine an appellate judge’s decision to take senior status in terms of how it affects the by-party-of-appointing-president composition of a court of appeals. To make things less abstract, I’ll use examples that reflect our current situation in which a Republican president would fill the vacancies.

If a judge who was appointed by a Republican president elects senior status and President Trump then fills the vacancy, the new appointment would preserve the pre-existing mix of Republican and Democratic appointees among active judges. At the same time, it would provide a net addition to the court’s workforce of judges (active plus senior) appointed by Republican presidents that would be equal to the caseload that the senior judge chooses to carry.

If a judge who was appointed by a Democratic president elects senior status and President Trump then fills the vacancy, the new appointment would of course increase by one the number of Republican appointees among the active judges on the Court and decrease by one the number of Democratic appointees. The impact that it would have on the court’s overall workforce of judges would depend on the caseload that the senior Democratic judge would carry. If, for example, that judge chose to carry a two-thirds workload, the net effect would be to increase the Republican appointee share of the overall workforce by one judge and to reduce the Democratic appointee share by the equivalent of one-third of a judge.

If judges were basing their decisions on whether or not to take senior status entirely on how their decisions would affect the by-party-of-appointing-president composition of their court, it would therefore be sensible for Republican-appointed judges to take senior status now and for Democratic-appointed judges not to. (Again, I’m focusing on our current situation; the incentives would of course be reversed if we had a Democratic president. I’ll set aside for now the complications that would result if the president and the Senate majority were of opposite parties.) That’s the basis on which Hugh Hewitt has urged senior-eligible Republican appointees to take senior status.

The reality, of course, is that a judge’s decision to take senior status involves a mix of additional considerations. For any judge, the strongest consideration in favor would be the desire for a reduced caseload. A Republican-appointed judge who intends to maintain a full caseload for the foreseeable future might well see some downsides in taking senior status: no longer taking part in en banc proceedings, for example, and no longer being the presiding judge on three-judge panels. At the same time, that judge will realize that delaying a decision to take senior status presents the risk that a future president of the opposite party will fill the judge’s seat with someone of a very different judicial philosophy. How any judge would assess the overall mix of factors is impossible to discern from a distance.

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