Do Lower Court Judges Time Their Decisions to Take Senior Status (or Retire) Based on Who May Replace Them?

Do lower court judges time their decisions to take senior status or retire, and thus create a vacancy for a President to fill, based upon who they think might replace them? It is an interesting (and timely) question–and one that can be informed by more than anecdote and intuition.

Back in 1995, James F. Spriggs, II and Paul J. Wahlbeck published a paper looking at lower court retirement decisions between 1893 and 1991, “Calling It Quits: Strategic Retirement on the Federal Courts of Appeals, 1893-1991.” Perhaps unsurprisingly, they found that retirement rates increased significantly among judges appointed by a President of the same party as the current occupant of the White House. Other studies, including “Judges as Party Animals: Retirement Timing by Federal Judges and Party Control of Judicial Appointments” by Ross M. Stolzenberg and James Lindgren have reached similar conclusions.

More recently, John Deschler and Maya Sen looked at whether ideology, distinct from partisan affiliation, influences judges’ decisions to leave active status. Their paper, “The Role of Judge Ideology in Strategic Retirements in U.S. Federal Courts,” published last year, suggests it does. Here’s the abstract:

The widely recognized phenomenon of federal judges retiring strategically has key implications for the composition of the judiciary, particularly given polarization between the two U.S. political parties. Using fine-grained measures of judicial ideology, we examine how ideology shapes such strategic retirements. First, we show that since Reagan’s election, Democratic appointees to lower federal courts have been more likely to retire strategically than Republican ones. Second, we find that more ideologically conservative Republican appointees are more likely to strategically retire than are moderate Republican appointees but only suggestive evidence of a similar pattern among more liberal Democratic appointees. Third, as explanation, we find that moderate Republican appointees appear to “wait out” retiring strategically under more conservative recent presidents, such as Donald Trump, opting instead to retire under Democrats such as Joe Biden. Taken together, our results offer a key insight: ideology, and not just party, can be an important factor in driving strategic retirement.

Setting aside whether Trump should be characterized as more “conservative” than other Republican presidents, and whether the Trump effect found here is properly characterized as a function of “ideology,” the study does seem to find a Trump effect on judges’ decisions to create vacancies.

Why might this matter? One reason it might matter is that judges who are wavering may be more likely to retire if they fell more confident in the sort of nominee who would replace them. At this moment there are 22 circuit court judges who were appointed by Republican Presidents who are eligible for senior status but have not yet announced any intention to step down, as well as 42 district court judges.

This suggests that if the White House wants to maximize the administration’s influence on the judiciary, it should seek to appoint the sort of judges that are likely to instill confidence in judges who are eligible to take senior status, particularly in the beginning. (In other words, it should seek to nominate judges of the caliber that it nominated during the first term.) And if it fails to do so, it may discover that it ends up with fewer vacancies to fill.

Trump’s first judicial appointment of the second term would seem to fit the bill here. The second appellate nomination, Emil Bove, has been more polarizing. So the jury is out on whether Trump’s judicial nominations will, on the margin, encourage more sitting judges to create vacancies for President Trump to fill.

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