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The Old Hand Problem

By Xiao Wang. Full Text.

Senior status is a special form of retirement for federal judges. When a judge takes senior status, they open a vacancy on their court, yet continue to hear and decide cases. Most active judges today eventually go senior. Yet many do not do so the very moment they become eligible.

So why do judges take senior status when they do? The scholarly consensus emphasizes non-partisan reasons, such as rising caseloads or financial incentives. This Article, though, presents the first attempt to comprehensively analyze the timing behind every senior status decision since 1919. My dataset offers a startling rebuttal to the existing literature, showing that today—more than ever before—the decision to go senior is politically strategic, giving open seats to Presidents from the same political party.

For much of history, going senior was not all that partisan. As recently as the Clinton Administration, more than half of the judges who took senior status had been appointed by a Republican President. But that has changed. Under George W. Bush, over seventy percent of federal judges seeking senior status were appointed by a Republican President. During the Trump Administration, this number increased to over eighty percent. By comparison, fifty-seven percent of judges going senior under Barack Obama were appointed by a Democrat, and sixty-five percent of judges going senior under Joseph Biden were appointed by a Democrat. As reflected in these percentages, politically strategic behavior is most pronounced when a Republican is in the White House; one side, it seems, is playing the game better than the other.

I call this sort of politically strategic behavior the “old hand” problem. Senior judges, while technically retired, continue to control law and policy for this generation and future generations—thus casting doubt on the legitimacy of judicial decisions for three distinct reasons.

When a circuit judge goes senior, they create an opportunity to fill a vacant seat with an ideologically compatible replacement, all while staying on to participate in panel decisions. That is court-packing. When a district judge goes senior, they get to choose their cases and pick their magistrate judge colleagues—instances of court-picking. And when chief judges invite senior judges to visit their courts to advance political goals, that allows for court-stacking. Together, court-packing, court-picking, and court-stacking are already eroding judicial legitimacy. I conclude by discussing some ways to address the old hand problem.