A nonagenarian discusses life as a senior circuit judge.

Author:Aldisert, Ruggero J.
 
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A senior circuit judge is often asked: What do you people do? What kind of cases do they assign to you? And how many? Do you decide what cases you want to work on? Where do you work? What kind of staff helps you? Do you have any spare time to do legal writing for the public? How often do you do it? Any books? Any articles?....

These are legitimate questions, and I have decided to take a crack at answering them. I do so both because the literature is somewhat sparse (1) and also because senior judges are, by definition, senior citizens, and often the assumption is that they are doddering and "over the hill." At law schools--heavens to Betsy--both faculty and student law review editors don't truck with what they consider the Geritol set, and the general understanding is that senior judges are limited to super-active physical activities like shuffleboard at an AARP conference, hearing an occasional case or two when their schedules permit. Pardon the sexist comment, but this is merely an old wives' tale and it is a glaring misrepresentation of who we senior judges are and what we do.

The brute facts indicate that judges in senior status participate meaningfully in court business and contribute a substantial percentage of the total judicial work undertaken in both the federal courts of appeals and federal district courts. (2) In recent years, judges in senior status were responsible for nearly one-fifth of the total participation in appeals considered by the federal courts of appeals across the country: 18.2 percent of those cases in 2008, 17.8 percent in 2009, 21.6 percent in 2010 21.7 percent in 2011, 20.4 percent in 2012, and 19.9 percent in 2013. (3)

Although this Article will focus on the experiences of senior judges on the federal courts of appeals, senior judges make meaningful contributions to the federal district courts as well. In 2011 senior district judges were responsible for 17.2 percent of the total case terminations in those courts. (4)

I will write primarily about my experiences as part of this cohort, but before I delve too deeply into my own experiences as a senior judge, I believe that it is useful to give a brief description of the statutory authority for the senior judge position, the process by which one becomes a senior judge, the general duties of senior judges, and the expectations for senior judges in my circuit.

  1. THE SENIOR CIRCUIT JUDGE: A GENERAL DESCRIPTION

    Until the Judiciary Act of 1869, a federal judge could leave the bench only by resignation or by removal, if he or she was convicted on articles of impeachment. (5) The Judiciary Act of 1869 provided judges with an additional option: retirement with a pension equal to the judge's salary following service of ten years and attainment of the age of seventy. (6) This was followed in 1919 by an additional Act that created yet another option: the position now known as senior judge. (7) At that time, those in the position of senior judge were eligible to function as active judges, receiving the same salary, but with a reduced calendar.

    Subsequent legislation in 1948 provided that senior judges were eligible for salary increases similar to those authorized for active judges. (8)

    Since 1989, the five options for leaving the federal judiciary--removal, resignation, retirement, senior status, and death--have remained about the same. The current statute providing for the office of senior judge, 28 U.S.C. [section] 371, provides:

    (a) Any justice or judge of the United States appointed to hold office during good behavior may retire from the office after attaining the age and meeting the service requirements, whether continuous or otherwise, of subsection (c) and shall, during the remainder of his lifetime, receive an annuity equal to the salary he was receiving at the time he retired.

    (b) (1) Any justice or judge of the United States appointed to hold office during good behavior may retain the office but retire from regular active service after attaining the age and meeting the service requirements, whether continuous or otherwise, of subsection (c) of this section and shall, during the remainder of his or her lifetime, continue to receive the salary of the office if he or she meets the requirements of subsection (e).

    (C) The age and service requirements for retirement under this section are as follows:

    Attained age: Years of service: 65 15 66 14 67 13 68 12 69 11 70 10 (9) The age and service requirements for retirement under [section] 371 have come to be known as the "Rule of 80." By way of example, a judge who is sixty-five must have fifteen years of service before becoming eligible to take senior status. A judge who is seventy need have only ten. (10) In short, once federal judges satisfy the Rule of 80, they have three choices. They can choose to (1) continue in active service, (2) officially retire and receive annuities for life equal to their salaries at retirement, or (3) take senior status. (11)

    When a judge retires, he or she receives as a pension the last salary received while an active judge. Compensation of senior judges is much different. If and when active judges' salaries are increased, senior judges' compensation is also increased. Eligibility for these pay increases, however, requires that they perform a minimum workload certified by the circuit chief judge and the Chief Justice of the United States. Moreover, judges in senior status continue to be eligible to participate in insurance and survivor-annuity programs. (12)

    The remainder of this essay will focus on judges, like me, who have decided to retire into senior status upon satisfaction of the Rule of 80. As I will explain, this "retirement" is in name only; it looks very little like the retirement known to most Americans.

    Many circuit judges take senior status within a few years of turning sixty-five, the minimum age in the group being sixty-five, the maximum age being eighty-four, and the average and median ages both being sixty-eight. (13) These newcomers or "young" judges must be compared with old geezers like me--I turned ninety-four in November 2013, served eighteen years as an active judge from July 25, 1968 until December 31, 1986, and have served as a senior judge thereafter. Seldom does a judge serve far longer as a senior judge than as an active judge, and I confess that my longevity is a remarkable exception. It has, in any event, given me the perfect longitudinal perspective from which to write this essay.

  2. SENIOR JUDGES IN THE REGIONAL CIRCUITS: A STATISTICAL SNAPSHOT

    On my court, there are twelve senior judges, and I am the most senior of this illustrious group, both in terms of age and years of service. It is interesting to note that courts have quite different ratios of active to senior judges. Table 1 shows the ratios on the courts of appeals for the twelve-month period ending June 30, 2013.

    It must be emphasized that the number of senior judges is not based on any authorized action from on high, because taking senior status is the voluntary action of the individual judge, and this in turn depends on the tradition of the particular court of appeals. The senior judges on each court with the most years of judicial service to that court are shown in Table 2.

    It should be noted that on four of the federal courts of appeals, the judge with the most years of service remains on active status: Judge Torruella of the First Circuit, Judge Wilkinson of the Fourth Circuit, Judge King of the Fifth Circuit (who received her commission on the same day as Judge Reavley), and Judge Tjoflat of the Eleventh Circuit.

  3. THE SENIOR JUDGE EXPERIENCE ON THE THIRD CIRCUIT

    1. The Structure of the Role

      Shortly before the end of each fiscal year, senior judges on my court inform the chief judge how many days or weeks during the upcoming year they desire to sit with panels, and indicate the times of the year that are most convenient for them. Neither senior judges nor active judges have any say, though, as to when and with whom they will participate in the decisional process of the court. Nor do the judges have any input as to which cases will be assigned to their panel of three. Not even the chief judge has the ability to control case assignment. The calendar team in the Office of the Third Circuit Clerk fashions the calendar, following the mantra that as soon as a particular appeal ripens--that is to say that as soon as all required briefs are filed--it is assigned to the next available panel. This is not a random pick-and-choose deal; the case goes to the next panel available on a first-ripened, first-assigned basis. (15)

      Our court strives to have a total of about thirty weeks of panel sittings a year, with roughly forty cases in a four-day week. (16) The four-day-week tradition was a creation of three judges appointed by President Franklin D. Roosevelt: Judge John Biggs, Jr., appointed in 1937; Judge Albert B. Maris, appointed in 1938; and Judge Herbert F. Goodrich, former dean of the University of Pennsylvania Law School, appointed in 1940. (17) These judges set the pattern of encouraging judges on the federal courts of appeals to serve as adjunct law professors and they made every Wednesday available for teaching, hence no oral arguments on Wednesdays. And our judges are still teaching today. (18)

    2. The Expected Workload

      The expected workload of each senior judge determines the size and composition of his or her staff. These determinations are made annually. Every senior judge who is designated and assigned to perform judicial duties is provided with suitable chambers and space for the judge's authorized staff. (19)

      Active circuit judges are currently entitled to five staff positions--one or two secretaries and three or four law clerks. A senior circuit judge who agrees to accept a percentage of the average workload of an active judge may be certified for staff and chambers space on a pro-rata basis. On our court, for example, staffing for senior judges is...

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