As President Biden’s first term enters its last year, some legal scholars and experts have raised the suggestion that judges appointed by past Democratic administrations consider taking “senior status.” But what is “senior status,” and how would it make room for additional nominees of President Biden?
We turned to People For’s Senior Legislative Counsel Paul Gordon to answer some questions about why it’s so important for federal judges to consider taking senior status right now.
Thanks, Paul. First off, what is senior status, and how does it work?
Senior status is a type of semi-retirement for federal judges. They become eligible when they reach a certain age and number of years on the bench. A judge who takes senior status has a reduced caseload (they can decide by how much), but they still get their full salary. When a judge takes senior status, it creates a vacancy on that court the same as if they had completely retired.
Why should Democratic-appointed judges consider taking senior status?
A judge who respects the law and who values our rights and freedoms likely doesn’t want to be replaced by someone with a diametrically opposed view of the law. Democrats control the White House and Senate for now, but that could change after next year’s elections. If a judge takes senior status this year or next, their replacement will be nominated by President Biden, and their confirmation will be up to a Democratic Senate. Even if Biden wins reelection, a Republican-controlled Senate would almost certainly block his judicial nominations. And if Trump wins in 2024 … Well, we’ve seen what kinds of judges he put on the bench. A judge who chooses not to take senior status in the next year might not be lucky enough to hang on until the next time Democrats control both the White House and the Senate. So staying on the bench runs a high risk of doing great damage to the courts. In contrast, announcing plans to take senior status now means a replacement with similar respect for the law will occupy that seat for possibly decades to come.
What happens after a judge announces they intend to take senior status?
The moment a judge announces their plans to take senior status, the president and Senate can start the hard work of identifying and vetting potential nominees for that seat. Especially with district courts, the senators of the state where there’s a vacancy generally play a large role in recommending potential nominees to the president. Even when the senators are of the opposite party, the White House usually tries to consult with them to identify possible nominees who they can all agree on. The negotiations and the vetting can take months. Then after they are nominated, the Senate has to confirm them, a process that also takes months since Republicans have been doing everything they can to slow down the process of confirming Biden judges.
This is why judges usually announce their plans to take senior status many months or even a year in advance. Some judges don’t announce a specific date, but instead say they will take senior status as soon as their replacement is confirmed.
A judge who wants their replacement confirmed by the end of 2024 should announce their plans for senior status as soon as possible. And should their replacement not be confirmed by the end of 2024, the judge can change their mind and choose not to take senior status.
Have judges been urged to take senior status in the past?
Yes. For instance, in 2017, the National Review ran an article titled “A Better Way to Give Trump More Judgeships to Fill.” In it, a law professor affiliated with the conservative Cato Institute encouraged Republican-nominated judges to “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.” In early 2020, then-Majority Leader Mitch McConnell urged judges considering senior status to act soon, so that a Republican president and Senate would pick their replacement.
Why is it so important to nominate and confirm fair-minded judges to federal courts?
As important as the Supreme Court is, the overwhelming majority of federal court cases are decided by lower courts. No matter what issue you care about, it’s hugely affected by federal judges. So it makes a big difference who gets named as judges. With good, fair-minded judges, we have access to abortion care, police are held accountable for unjustified violence, our right to vote is protected, companies that discriminate are held accountable, and more. Without good judges, those in power are able to abuse that power with impunity. That’s why the Far Right set out to take over our courts decades ago. Now it’s our turn to make things right.
We appreciate the insights into the judicial nominations process and why fair-minded judges matter. We’re continuing to watch current nominations and confirmations carefully, and we’re urging the Senate to confirm more fair-minded judges. But we need your help to make this work successful. Please consider becoming a member of People For today and donating to support us. Together we can help ensure more fair-minded judges are confirmed to federal courts and the justice system serves the people, not far-right extremists.
Tell Senate Majority Leader Chuck Schumer to prioritize judicial nominations.