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

• Author: Burbank, Stephen B.
• Position: III. Service in Senior Status, p. 19-55

3. SERVICE IN SENIOR STATUS

1. Introduction

   The brief history in Part I permits readers to situate service in senior status among the choices available to federal judges considering whether to leave regular active service. Congress created this alternative to full retirement for policy reasons having to do with both the federal judiciary as an institution and Article III judges as individuals. The historical account in Part I also permits readers to track the key subsequent developments in retirement from regular active service, many of which are most fruitfully considered by reference to contemporaneous arrangements for retirement from the office. Thus, Congress added to the incentives favoring senior status in 1948 legislation that made judges serving in that status eligible to receive the salary of the office, including salary increases, while continuing to fix the annuities of fully retired judges at the level of their salaries at the time of leaving office. (88) It did so again in 1954 by making judges eligible to assume senior status at or after age sixty-five with fifteen years of service or at or after age seventy with ten years of service, while continuing the latter as the exclusive age and service minimums for full retirement. (89)

   The 1984 legislation introducing the Rule of 80 moved in the opposite direction, assimilating service in senior status and full retirement for purposes of eligibility requirements, and thereby eliminating one advantage of senior status. (90) The Ethics Reform Act of 1989 reduced another advantage by conditioning salary increases (as opposed to COLAs; fully retired judges receive neither) for judges in senior status on annual certification that they have performed a prescribed minimum amount of work. (91) Thereafter Congress avoided adding to the advantages of full retirement over service in senior status, and instead provided another advantage to senior status over regular active service, by exempting judges in senior status who are certified for salary increases from the 15% annual limit on outside income earned through approved teaching. (92)

   One of the post-1919 developments that may have escaped attention by those reading our general historical account concerns the need for judges in senior status to be designated and assigned in order to perform judicial service. Prior to the 1944 legislation that clarified this requirement, (93) it was reported that "some retired judges ha[d] walked into courtrooms and announced that they were ready to function, when there was no need for their services." (94) The House Judiciary Committee's report stated that "[i]n the interest of orderly administration of justice with regard to the work of the courts it is advisable that the activity of the [judges in senior status] be fitted into the schedules of the active judges." (95)

   Looking forward, if we are to understand why federal judges choose (or choose to remain in) senior status over continued regular active service or full retirement, we must take into account the aspects of their work that may influence choice. Judges who, because of disability, formally assume senior status or retire from office are not properly part of that inquiry: in the four decades since 197o, it appears that approximately 53 federal judges retired from regular active service, voluntarily or involuntarily, due to permanent disability. (96) They are not included in the analyses and discussion that follow.

2. Some Demographic Characteristics of Judges in Senior Status, 1970-2009 (97)

   There were 89 federal judges serving in senior status on January 1, 1970. From that time until December 31, 2009, 2143 judges served on the lower federal courts. During the same period, 1006 federal judges served in senior status for some period of time, a number that includes those in senior status at the start and end of the period. For the period as a whole, we calculated the age at which judges assumed senior status. Table 1 and Figure 3 present the data.

   [FIGURE 3 OMITTED] (98)

   When we look at the number of years federal judges who did assume senior status were eligible before doing so, the averages and medians (rounded to the nearest whole numbers) are similar, and Table a shows that most judges who have assumed senior status have not waited long to do so.

3. The Contemporary Functions of Service in Senior Status

   A great deal has changed since t9t9 in the nature and amount of work (judicial and administrative) performed by the federal judiciary, the number of Article III judges (and others) who do that work, and the contributions to the enterprise of judges serving in senior status.

   1. The Workload of the Federal Judiciary, 1970-2009

      In the four decades since 1970, the number of civil and criminal dispositions by the federal district courts has increased enormously. (99) The increase has been even more dramatic in the work of the regional courts of appeals. (100) Case terminations by themselves are not, however, a good basis for assessing workload, whether of a court or of an individual judge. One reason is that they do not reflect the resources available to process and consider the cases. As we shall see, at least since 199o, the growth in case terminations cannot plausibly be attributed to growth in authorized Article III judgeships. Yet, as Richard Posner's discussion of judicial surrogates in the mid-1980s suggests, (101) we are a long way from the days when a Justice of the Supreme Court could say with a straight face, "The reason the public thinks so much of the Justices of the Supreme Court is that they are almost the only people in Washington who do their own work." (102)

      Federal judges today have available help that is different in degree and in kind from that available when Congress first provided for service in senior status--or for that matter in 1970--including more law clerks, magistrate judges, special masters, and staff attorneys. For that reason, when considering requests for additional judgeships, informed members of Congress do not take at face value data reflecting adjusted case filings (for the courts of appeals) or weighted average caseloads (for the district courts) that omit the contributions of judges in senior status (and, for district courts, of magistrate judges). (103) When seeking additional judgeships, the Judicial Conference also takes into account, among other factors, the number of senior judges, their ages and levels of activity, magistrate judge assistance, and the use of visiting judges. (104)

      Another reason why case terminations are not a sufficient basis for assessing workload--this is not intended to be an exhaustive list--is that different modes of termination may involve different levels of judicial effort. Even the same mode of termination may involve different levels of judicial effort over time. As to the former point, recent scholarship has documented the near death of trials as a mode of terminating federal civil cases in the last fifty years, (105) as it has documented the growth of terminations by summary judgment. (106) Consider also the phenomenon of procedural, as opposed to merits, terminations by the courts of appeals, which have increased substantially in recent years. (107) As to changes in the same mode of termination over time, more than twenty years ago Judge Jon Newman observed of courts of appeals that "more and more cases are being decided without oral argument and without published opinions." (108)

      For present purposes we need not enter further into debates about the case workload of the federal courts. It suffices that, quite consistently since 1970, (109) both the federal district courts and the regional courts of appeals have been required to become involved in an increasing number of cases. It remains to be seen what role(s) judges serving in senior status have played in the disposition of those cases, a subject to which we will turn shortly.

      Finally, the workload of federal judges, as opposed to that of federal courts, is not restricted to the cases or controversies contemplated in Article III. The source of Judge Posner's anxiety about judicial surrogates in 1985 was that the federal courts had come to resemble a bureaucracy in the performance of judicial work. (110) The phenomenon has hardly been confined to that domain. Management and governance at all levels increasingly have relied on committees of judges. For example, in 1970, the Judicial Conference of the United States had 16 committees. (111) In 2009, it had 25 committees. (112) Some of the increase at all levels has been necessary to respond to tasks imposed by federal statutes. Some of it is due not to additional statutory responsibilities but to other complexities of the times. In addition, the perceived need to protect the interests of the judiciary as a branch of government has led both to the creation of new committees and to an increasing role for judges on existing committees.

   2. Authorized Judgeships and Vacancies, 1970-2009 (113)

      Over the period covered in this study, the number of judgeships authorized for the regional courts of appeals has increased from 97 to 167, with the creation of the United States Court of Appeals for the Federal Circuit adding 12 circuit judgeships in 1982 (a number that has not changed). Over the same period, the number of judgeships authorized for the district courts has increased from 510 (plus 1 temporary judgeship) (114) to 667 (plus 10 temporary judgeships). Substantial increases during this period occurred in 1978, 1984, and 1990.

      The number of authorized judgeships for the courts of appeals has not increased since 1990. The number of authorized judgeships for the district courts has increased by 35 (with the number of authorized temporary judgeships remaining the same). Comparison of authorized judgeship increases with increases in case terminations from 1990 to 2009 led us to observe that "at least since 1990 the growth in case terminations...