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A Better Way to Give Trump More Judgeships to Fill

Josh Blackman

Recently, a prominent conservative law professor and his former
student created a stir when they urged Republicans to create over 200 new judgeships for President
Trump to fill. This proposal, I wrote, was “ill-considered and should be
discarded.” And indeed it was: The authors removed the proposal from the Internet and are
revising it.

There is, fortunately, a far easier way to give President Trump
many new vacancies to fill. According to my calculations, there are over 100 judges
appointed by Presidents Ronald Reagan, George H. W. Bush, and
George W. Bush who can immediately open up new vacancies
by announcing a plan to leave active service, either upon the
confirmation of their successor or on a future date. They should be
encouraged to do so over the next year.

Under Article III of the Constitution, federal judges can
continue to serve “during good Behaviour” — effectively life
tenure — without any reduction in salary. Judges who reach
the age of 65 have the option of retiring with a 100 percent
pension for the rest of their lives. Alternatively, these judges
can stay on the bench through “senior status,” so long as they
satisfy the “Rule of 80,” meaning their age and their years of
active judicial service sum to that number or higher. For example,
a 65-year-old judge with 15 years of service can assume senior
status, as can a 70-year old judge with ten years of service.

More than 100 Republican
appointees have the option of assuming ‘senior status.’

The bottom line is that senior judges who maintain a minimum
caseload can keep — in addition to their guaranteed salary
— their chambers, staff, and law clerks indefinitely. But
once a judge takes senior status, the president can nominate, and
the Senate can confirm, a replacement. Further, it is a fact of
life that judges appointed by Democratic presidents are more likely
to take senior status when a Democrat is in the White House, while
judges appointed by Republican presidents are more likely to take
senior status when a Republican is in the White House. Like Supreme
Court justices, lower-court judges can and do schedule their
retirements around elections. Given this stark reality, my analysis
will focus on the nominees of Republican presidents.

Today there are 30
appellate judges
eligible for senior status who were appointed
by Presidents Reagan, George H.W. Bush, and George W. Bush. (Judge
Alex Kozinski, a Reagan appointee on the Ninth Circuit, would be
especially well-advised to take an early retirement.)
Between now and the end of 2018, five more of President George W.
Bush’s circuit-court nominees will be eligible for senior status,
only two of whom have announced plans to take it. The federal
district courts — the trial courts of our federal system
— have far more judges who are eligible to take senior
status: twelve from the Reagan administration, ten from the first
Bush administration, and nearly 50 from the second Bush
administration.

There is one significant difference between senior status for
the circuit and district courts. Trial judges always hear
cases solo. Thus, even in senior status, their full docket
continues without any changes. Circuit judges who take senior
status forfeit the right to hear cases en banc, whereby
all of the judges on the court assemble to resolve the case. This
concern, while not trivial, is overstated. Nearly 99.7 percent of
all appeals are handled by three-judge panels; very few are reheard
by the entire court. For example, in 2010, the 13 federal courts of appeals heard
only 45 cases en banc, out of more than 30,000 cases that
were resolved on the merits. It is true that the rare cases that go
en banc are the most pressing and contentious. An eligible
judge, however, can have a far greater impact on the law of the
circuit by taking senior status — and thus allowing a new
judge to enter the rotation for panel assignments — than by
participating in a fleeting number of en banc
proceedings.

There is an important subtext of this analysis that I cannot put
too bluntly. If the Democrats take the Senate in 2018 — which
became more likely after the recent election in Alabama — I
fully expect Chairman Dianne Feinstein to deny hearings to
virtually all of President Trump’s judicial nominees. This form of
political hardball is to be expected after Republicans refused to
hold a vote for Judge Merrick Garland, used the nuclear option to
confirm Justice Neil Gorsuch, and held confirmation hearings
without the return of “blue slips.” As I predicted in a series of speeches in late 2014 and early 2015
— before Justice Scalia’s passing — going forward,
judicial confirmations will be possible only when the presidency
and Senate are controlled by the same party. Look no further than
the fact that Justice Don Willett of the Texas supreme court
— who is eminently qualified for the federal bench by all
objective measures — did not receive a single Democratic vote. Long gone are the days when
Republican-appointed judges could be confirmed by a voice vote, or
with solid bipartisan support.

Forward-looking steps taken today can alleviate future stress on
the judiciary by preventing prolonged vacancies. Judges intent on
taking senior status can make the process even smoother by
providing advance notice. For example, in April 2017, Judge David
McKeague of the Sixth Circuit announced that he would take senior status upon
the confirmation of his successor. President Trump’s nominee was
confirmed on November 1, 2017 — the same day that McKeague
entered senior status — and thus there was only the slightest
vacancy on the court. The transition was seamless. Judge Alice Batchelder, also of the Sixth
Circuit, and Judge Edith Brown Clement of the Fifth Circuit
have taken a similar approach. Many district-court judges have
done the same. Alternatively, a judge can
announce the date he or she will take senior status far in the
future to give the White House and Senate plenty of time to select
a nominee. Indeed, the confirmation vote could be scheduled for
that date certain, and the hearing before the Judiciary Committee
could be held beforehand.

This approach to retirement is not novel, and follows an
important precedent. On July 1, 2005, Justice Sandra Day O’Connor conditioned her retirement
from the Supreme Court on the confirmation of her successor.
Justice Samuel Alito would not be confirmed until January 31, 2016.
Justice O’Connor’s ability to continue her service during that
tumultuous period, which included the death of Chief Justice
William Rehnquist, ensured continuity on the High Court.

If the Senate flips in 2018, the Reagan, Bush, and Bush judges
who held out — with an average age of 73 — may not have
their replacements confirmed until 2021 at the earliest.
And that’s assuming the president and the Senate are of the same
party. The next twelve months present a unique opportunity for a
series of smooth transitions within the federal judiciary. Waiting
beyond this time will occasion prolonged vacancies and contentious
confirmation battles.

Indeed, these dynamics may provide some food for thought for
Justice Kennedy as he ponders retirement. A Supreme Court vacancy
that arises in a divided government could last two, four, or even
six years. As law professor Jonathan Adler observed, “Whether or not
Justice Kennedy likes the idea of President Trump picking his
successor, he may like the idea of his seat remaining vacant for an
extended period of time even less. This would mean the time is
now.”

President Trump’s most lasting legacy will be the judiciary. And
he may have less than a year to complete it.

Josh
Blackman
is a constitutional-law professor at the South Texas
College of Law in Houston, an adjunct scholar at the Cato
Institute, and the author of Unraveled: Obamacare, Religious
Liberty, and Executive Power
.