Josh Blackman has some interesting comments on two federal appellate judges — one a Reagan appointee, the other a Clinton appointee — who rescinded their decisions to take senior status after learning, to their dissatisfaction, the identity of the nominees who would replace them. (Note the excellent reporting by David Lat.)
There is something deeply unseemly about this. Two rescissions do not necessarily represent a trend, but as Professor Blackman points out, conditioning senior status on the appointment of a chosen successor would effectively give judges a veto power over presidential nominations. This poses obvious problems for both the general balance of power in the federal government and our Constitutional fabric.
The question is what to do about it. I see nothing in the governing statute that expressly forbids this type of gamesmanship. But there are certainly some opportunities for soft power responses. For one thing, the President need not kowtow to a judge’s demand for a specific nominee; if President Biden and his successors simply refuse to allow sitting judges to influence the nomination process, the likelihood of particularized conditional declarations of senior status will probably just dry up.
It’s also possible for powers within the federal court system to respond. Neither the Chief Justice nor the Judicial Conference has coercive power to prevent judges from declaring conditional senior status. But they do have other forms of influence. It is hard to believe that a call from the Chief Justice, or a sternly worded communique from one’s peers about preserving the legitimacy and apolitical culture of the judiciary, wouldn’t make a difference to many on the bench.
To be sure, the federal court system needs judges to take senior status periodically. It is an important means of bringing in new blood and coping with voluminous dockets (since senior judges do not count against each district and circuit’s statutory allocation of active judges). But the internal culture also has to be preserved, and slowing some judges from taking senior status in order to maintain legitimacy is surely the right call.