Since President Biden took office nearly two months ago, only ten federal appellate judges have taken senior status (or, in the case of Merrick Garland, retired) or announced their intention to do so. Given the large number of federal appellate judges appointed by Democratic presidents who are “senior eligible”—that is, who could fully retire or take senior status and continue to receive their annual salary—that’s a slower pace of new vacancies than I anticipated.
When it comes to Supreme Court retirements, I have often observed that it’s rare for a justice to expedite retirement in order to accommodate broader political considerations (e.g., who is president, composition of Senate). I think that I failed to give enough weight to the factors that operate to similar, if lesser, effect for appellate judges deciding whether to take senior status.
In particular, an appellate judge who desires to retain a full caseload will see considerable downside, with little or no compensating upside, to going senior. For starters, the judge would lose considerable clout. A senior-eligible judge is usually the presiding judge on a panel and thus has the valuable role of assigning opinions to the panel members—and keeping the best assignments for himself. If the judge goes senior, someone else will be assigning opinions to him. While the rules governing en banc proceedings vary somewhat from circuit to circuit, a judge who goes senior will also play a much smaller role, if any, in en banc proceedings.
A judge also risks losing prestige by going senior. Whether or not that matters to the judge’s ego, it might affect how attractive the judge is to future applicants for clerkships.
A judge considering whether to take senior status might also look around at the other senior-eligible judges on his circuit and say to himself, “Why should I go senior before they do? I’m performing at a higher level than they are.”
And then there’s the elementary disinclination that most humans have to face the reality of aging.
On the opposite side of the ledger, a federal appellate judge who was appointed by a Democratic president—and who is therefore presumably supportive of the sort of judges that President Biden will be picking—would welcome the incremental effect on his court’s overall ideological makeup (active judges plus senior judges) that would result from his being replaced. But that incremental effect is likely to be very small.