Leaving the bench, 1970-2009: the choices federal judges make, what influences those choices, and their consequences.

• Author: Burbank, Stephen B.
• Position: Introduction through II. Resignation, p. 1-19

For people of influence in any walk of life, from corporate leaders to sports stars, the question of when to leave the stage is a crucial one. Do you go out at the top of your game, giving up any shot at further glow? Or do you dig in until the end, at the risk of tarnishing a distinguished career? (1)

INTRODUCTION I. THE STATUTORY HISTORY OF JUDICIAL CHOICES II. RESIGNATION A. Why Judges Resigned in the Last Four Decades 1. Age and Health 2. Appointment to Other Office or Pursuit of Elected Office 3. Dissatisfaction 4. Return to Private Practice, Other Employment, Inadequate Salary 5. Allegations of Misconduct B. Analysis III. SERVICE IN SENIOR STATUS A. Introduction B. Some Demographic Characteristics of Judges in Senior Status, 1970-2009 C. The Contemporary Functions of Service in Senior Status 1. The Workload of the Federal Judiciary, 1970-2009 2. Authorized Judgeships and Vacancies, 1970-2009 3. The Ratio of Service in Senior Status to Regular Active Service 4. Case Work Performed by Judges Serving in Senior Status 5. Administrative Work Performed by Judges Serving in Senior Status D. The Contemporary Working Conditions of Judges in Senior Status 1. Salary, Benefits, and Collateral Financial Consequences 2. Other Terms and Conditions a. Privileges (Advantages) b. Disabilities (Disadvantages) i. Those Imposed by Statute ii. Those Not Imposed by Statute E. The Questionnaire Survey IV. RETIREMENT A. Introduction B. The Demographic Data: Retirements 1970-2009 1. Frequency of Retirement 2. Retirements Delayed 3. Age at Retirement C. What the Historical Record Teaches D. The Questionnaire Survey 1. Methodology 2. The Results V. JUDGES IN REGULAR ACTIVE SERVICE A. Introduction B. Demographics C. The Questionnaire Survey 1. Regular Active Service vs. Senior Status 2. Regular Active Service vs. Retirement VI. POLICY IMPLICATIONS A. Resignation B. Retirement C. Senior Status INTRODUCTION

The Constitution of the United States provides that the judges of courts that exercise the judicial power of the United States are entitled to office for life, subject only to a requirement of "good Behaviour," with a compensation "which shall not be diminished during their Continuance in Office." (2) In order to safeguard the independence of the federal judiciary, the Founders specified that, once appointed, a federal judge could be removed from office only by impeachment for and conviction of "Treason, Bribery, or other high Crimes and Misdemeanors." (3)

During the first eighty years of the national government, there were three ways to leave the federal bench: removal following conviction after trial on articles of impeachment, resignation, and death. None of them entitled the judge (or his heirs) to any financial benefits. There was no provision for retirement or disability. Today, federal judges can still resign without financial benefit or remain in regular active service until death. Since 1869, however, Congress has recognized that the country's interest in an experienced and effective national judiciary is best served by providing judges with additional alternatives. Initially, the only other alternative was retirement with an annuity after substantial service and attainment of a specified age. More recently, Congress added the alternative of service in senior status--retaining the office but, at the judge's option, taking a decreased workload, again after substantial service and attainment of a specified age. (4) Like resignation and retirement, taking senior status creates a vacancy on the judge's court, enabling the President to appoint another individual to serve on that court.

Judges who retain the office, either by remaining in regular active service or by taking senior status, are subject to a number of restraints on their activities imposed by statute or by the Code of Conduct for United States Judges, restraints that are not applicable to citizens generally. These include a prohibition against the practice of law, specified limits on outside income, and restrictions on various types of public service activities and most types of political activity. A retired judge relinquishes the office and as a consequence, like a judge who resigns, is not subject to any of the restraints applicable to serving judges.

The research underlying this article was inspired in part by a study of resignations from the federal bench conducted for the National Commission on Judicial Discipline and Removal, which Congress created in 199o and on which two of the authors served as appointed members. (5) As part of its research program, the Commission secured an analysis of all resignations from the federal bench between 1789 and 1992, with the goal of determining, among other things, which of them were effectively involuntary because they occurred in the shadow of threatened impeachment or criminal prosecution. (6) The Commission did not address, however, what paths judges have taken when given a voluntary choice to remain in regular active service or, if eligible, to serve in senior status or retire.

The research underlying this article was also inspired by our recognition that, almost twenty years after the Commission issued its report, the judiciary confronts new challenges. Federal judicial caseloads have risen dramatically, and the number of Article III judges in regular active service and the compensation those judges receive have not kept pace with the workload or inflation. These developments may have adverse consequences for the institution, and recent economic conditions have exacerbated budgetary pressures already exerted by Congress on the institutional judiciary.

Taking account of these developments, we determined that it would be useful to bring the Commission's work on judicial resignations up to date and to take a broader look at the tenure of federal judges and the...