A century ago, Congress, responding to a changing legal landscape, fundamentally altered the operation of the federal judiciary by implementing “senior status,” allowing judges to continue working on a reduced caseload instead of retiring.  Since then, judges have used senior status extensively.  However, over the last thirty years or so, moves to senior status have become increasingly strategic, with judges timing their moves to allow like-minded successors to be confirmed.  This has culminated, in the last four years, with the widespread use of a formerly rare maneuver, taking senior status upon confirmation of your successor.  With a new Administration approaching, it is worth looking at the history of senior status, strategic retirements, and the likelihood that “senior status upon confirmation” will likely be the new normal.

What is Senior Status

Before 1919, federal judges were permitted to retire at age seventy, as long as they had at least ten years of service, after which they would maintain a pension for the rest of their life.  However, under the new system created by Congress, judges could, instead of retiring, move to senior status, which allowed them to continue to work and hear cases, but nonetheless open up a vacancy for the President to fill. 

On October 6, 1919, Judge John Wesley Warrington on the U.S. Court of Appeals for the Sixth Circuit became the first judge in U.S. history to take senior status, a position he maintained until his death on May 26, 1921.   In the century after Judge Warrington’s move, senior status has become the norm for federal judges, and it’s easy to see why.  A judge’s move to senior status essentially adds a judge to a court, as a new judge can now be appointed while the old still hears cases.  Senior judges have proven to be a boon for the federal judiciary, continuing to hear and move cases along even as caseloads expand and proposals for new judgeships stagnate.  Senior status also carries benefits for the judge themselves.  Unlike judges who retire from the bench, senior judges continue to be eligible for cost-of-living increases.  Additionally, they retain significantly more flexibility over their dockets, allowing them to travel and to focus on cases that are more interesting to them.    

Eligibility for Senior Status

At the time that the senior status system was created, a judge became eligible for senior status after ten years of service, if he or she was over the age of seventy.  In 1954, this requirement was revised to the “Rule of 80.”  Under this rule, any judge over the age of sixty five becomes eligible for senior status once their age + their tenure equals or exceeds 80.  In other words, a judge appointed at 50 (or younger) becomes eligible for senior status at age 65.  Similarly, a judge appointed at 55 becomes eligible at age 67.5 (when 67.5 + 12.5 years of service = 80).  However, there is a requirement of ten years of service on the federal bench for a judge to become eligible for senior status.  As such, a judge appointed at age 64 wouldn’t become eligible at age 72 but rather at 74, once the ten year minimum is satisfied.  Like every rule, there are exceptions, and judges can take senior status early if justified by health concerns or because of a certified disability.  

Strategic Retirements and Senior Status Upon Confirmation

Given the caseload benefits of adding an extra judge, many jurisdictions have an informal policy that judges will take senior status immediately upon eligibility.  (In 2013, Judge Richard Kopf of the District of Nebraska confirmed that his district had such a policy.)  However, many other judges, particularly appellate judges, do tend to be more “strategic” with their moves to senior status, timing their moves to allow like-minded successors. 

Of course, such strategic considerations are not a recent development.  Justice Thurgood Marshall famously resisted retirement through the 1980s, waiting for a Democratic Administration that came too late to replace him.  However, strategic retirements have grown increasingly more common in the last decade with the use of a formerly-rare tool, senior status upon confirmation.

Taking senior status upon confirmation is a relatively straightforward concept.  Instead of announcing a date on which he or she would vacate their seat, a judge declares their intention to take senior status contingent upon the confirmation of a successor.  This  prevents a vacancy from opening until a replacement was approved.  Now, where a judge wishes to retire, this mechanism makes sense, as it reduces the disruption from a court losing a judge without gaining a replacement.  However, a judge on senior status can easily maintain their full caseload and avoid disruption, and, as such, this mechanism has a different purpose: ensuring that the current President is able to appoint their successor.  If a judge announces that they will take senior status upon confirmation and their President of choice is unable to appoint a replacement before the end of their term, the judge can (at least in theory) withdraw their intention and hold the seat without leaving a vacancy for the new President.

Perhaps because such a move could be seen as blatantly partisan, taking senior status upon confirmation has been fairly rare for much of the 20th century.  In 1968, Chief Justice Earl Warren announced his retirement from the Supreme Court contingent upon the appointment of a successor.  However, President Lyndon Johnson’s nomination of Justice Abe Fortas failed and the Republican Richard Nixon was elected instead.  According to historian Ed Cray, Warren considered withdrawing his retirement after Nixon’s election, but decided against it, feeling that the move would be seen as “a crass admission that he was resigning for political reasons.”  

Similarly, on the lower court level, taking senior status upon confirmation was practically unheard of until the second Bush Administration.  In 2003, Judge John Louis Coffey of the U.S. Court of Appeals for the Seventh Circuit, an appointee of President Reagan, was the first judge, reflected on the U.S. Courts website, to announce a move to senior status upon confirmation of his successor.  In September 2003, Judge Emory Widener of the U.S. Court of Appeals for the Fourth Circuit, who previously announced that he would take senior status on September 30, modified his status to reflect a move to senior status upon confirmation of his successor (DOD attorney William J. Haynes, nominated on September 29, 2003).  The next month, Judge James Graham on the U.S. District Court for the Southern District of Ohio, who had previously announced that he would take senior status on May 1, 2004, changed his status to taking senior status upon confirmation of his successor.  

For their part, this strategy had mixed results.  Both Graham and Coffey took senior status in 2004, upon the confirmations of Judges Michael Watson and Diane Sykes respectively.  However, Haynes was blocked from confirmation for four years by the opposition of Senate Democrats and Sen. Lindsay Graham.  Widener, facing ill health, finally took senior status unconditionally on July 17, 2007, and passed away two months later.  His seat was ultimately filled by President Obama with Judge Barbara Keenan.

Taking senior status upon confirmation did not resurface until June 2007, when Judge Daniel Manion, another conservative Reagan appointee on the Seventh Circuit, announced that he would move to senior status upon confirmation of his successor.  The next month, Judge Rudolph Randa on the U.S. District Court for the Eastern District of Wisconsin announced his intention to take senior status upon confirmation.  By the end of the Bush Administration, two other judges had announced a move to senior status contingent upon confirmation: Judge John Shabaz on the U.S. District Court for the Western District of Wisconsin; and Judge Garr King of the U.S. District Court for the District of Oregon.  For their parts, Manion was replaced by Bush appointee Daniel Tinder, but the Senate did not confirm Bush’s nominees to replace Randa, Shabaz, or King.  Upon the election of President Barack Obama in 2008, Randa did what Warren had not forty years earlier, and withdrew his decision to take senior status, essentially acknowledging that he did not want a Democrat to replace him.  In contrast, both Shabaz and King moved to senior status unconditionally in 2009, and President Obama replaced both judges. 

Taking senior status upon confirmation was sporadically (if rarely) used under President Obama, with five judges taking that route: Judge Barbara Crabb on the U.S. District Court for the Western District of Wisconsin; Judge Lawrence Piersol on the U.S. District Court for the District of South Dakota; Judge Frederick Motz on the U.S. District Court for the District of Maryland; Judge Claudia Wilken on the U.S. District Court for the Northern District of California; Judge Gary Fenner on the U.S. District Court for the Western District of Missouri.  All had their successors appointed by President Obama.  Notably, not a single appellate judge who took senior status under President Obama chose to do so contingent upon the confirmation of their successor.  As such, a number of Democratic appointees who took senior status late in the Obama Administration left their seats open for President Trump to fill.

In contrast, the “senior status upon confirmation” phenomenon exploded under President Trump.  In his first year alone, President Trump saw five judges announce moves to senior status contingent upon confirmation: Judge Edith Brown Clement on the Fifth Circuit; Judges David McKeague and Alice Batchelder on the Sixth Circuit; Judge Paul Kelly on the Tenth Circuit; and Judge Frank Hull on the Eleventh Circuit.  In 2018, five more joined the list: Judge Allyson Kay Duncan on the Fourth Circuit; Judge Edward Prado on the Fifth Circuit; Judges John Rogers and Deborah Cook on the Sixth Circuit; and Judge Roger Wollman on the Eighth Circuit.  In 2019, you had four: Judge Carlos Bea on the Ninth Circuit; and Judges Gerald Tjoflat, Stanley Markus, and Ed Carnes on the Eleventh Circuit.  In other words, there were more judges taking senior status upon confirmation under President Trump than had been in the entire history of America before then. 

What explains the flood of such announcements under President Trump?  For one, the White House has been proactive about contacting and pushing judges to take senior status in an effort to open vacancies.  Judge Michael Kanne on the Seventh Circuit described a call from the White House, where they promised to appoint one of his former clerks, Solicitor General Tom Fisher, if Kanne moved to senior status.  Kanne agreed and announced his intention.  However, the White House did not nominate Fisher, due to opposition from Vice President Pence, and Kanne withdrew his intent.  The 82 year old judge still serves on the Seventh Circuit.  It is possible that taking senior status upon confirmation allowed the judges to maintain some degree of control over their successors.

Senior Status Strategies Under President Biden 

After 54 appointments to the U.S. Court of Appeals, one could think that President Trump has emptied the bench of older Republican appointees, but that’s not true.  There remain twenty-six Republican appointed appellate judges who are eligible for senior status (an additional seven will become eligible over the next four years).  Nonetheless, a disproportionate share of judges likely to take senior status are expected to be Democratic appointees, making the next four years likely the first in over three decades to have more Democratic appointees leave the bench than Republican ones.  There are currently thirty-six Democratic appellate appointees eligible for senior status, and an additional thirteen that will become eligible over the next four years.  As such, if the Democratic appointees take senior status in the traditional manner and Republicans avoid confirming replacements, this would have the effect of making the bench significantly more conservative.

As a result, one could expect Democratic appointees to follow the precedent of the Trump years and take senior status only upon confirmation of their successors.  For those who are strategically inclined, this would disincentivize holding the vacancies open indefinitely and ensure that, while nominees remain pending, their circuits wouldn’t miss the judges’ voices on en banc issues.  Given that many judges are already mulling “strategic” moves to senior status, it wouldn’t be surprising to see many left-of-center jurists making their moves to senior status conditional over the next four years.  

A few quixotic election challenges notwithstanding, the 2020 Presidential election is over, and, barring anything unexpected, President-elect Joe Biden will be picking Supreme Court justices, likely in conjunction with a Republican controlled Senate.  Given the prospect of divided government, and our new President’s moderate instincts, a choice for the next Supreme Court nominee is likely to come down to a select group: a shortlist of four, to be precise.  It is my prediction that, if a Supreme Court vacancy opens during the 117th Congress, one of these four jurists will be selected.

Judge Ketanji Brown Jackson – U.S. District Court for the District of Columbia

President Biden has promised to appoint the first African American woman to the U.S. Supreme Court, and, Jackson, who currently serves as a trial court judge in Washington D.C. is bound to be high on the list.  The fact that Jackson ranks so highly on Supreme Court lists despite not being an appellate judge speaks to her experience and regard in progressive legal circles.

Jackson came to the bench with stellar legal credentials, with a B.A. and J.D. from Harvard University, and clerkships with First Circuit Judge Bruce Selya, and Supreme Court Justice Stephen Breyer.  Jackson then worked as a federal public defender and as an appellate litigator at Morrison & Foerster, filing a number of pro bono amicus briefs on criminal justice issues at the U.S. Supreme Court.

In 2009, President Obama nominated Jackson to serve on the U.S. Sentencing Commission, and she was unanimously confirmed by the Senate in 2010.  She was subsequently nominated and then unanimously confirmed again for the U.S. District Court for the District of Columbia in 2013.

In 2016, Jackson was one of five candidates closely considered by President Obama for appointment to replace Justice Antonin Scalia.  While she was not chosen, many assumed that she would be next in line for a seat on the D.C. Circuit if Judge Merrick Garland was confirmed to the Supreme Court.

While serving as a trial court judge, Jackson has made her mark with a series of bold decisions.  For example, in 2019, Jackson enjoined the Department of Homeland Security’s rule that expanded fast-track deportations without immigration hearings.  Similarly, in a suit seeking to compel testimony before the U.S. House from former White House Counsel Don McGahn, Jackson ruled that McGahn could be required to testify.  Jackson’s ruling was initially reversed by a 2-1 panel of the D.C. Circuit, but was ultimately affirmed by a 7-2 en banc decision of the full court.  This is not to say that Jackson has been a reflexive vote against the Trump Administration.  She sided with the Administration in holding that conservation groups couldn’t maintain a legal action against the building of a border wall on the basis of environmental impact.

As a whole, Jackson’s experience in indigent criminal defense and on sentencing issues, along with her experience with complex legal issues on the bench, would make her a compelling candidate for the Biden Administration, particularly in replacing Justice Breyer.

Justice Leondra Kruger: California Supreme Court.

The only shortlister who is not a federal judge, Justice Leondra Kruger is also, at 44, the youngest serious candidate for the Supreme Court.  Despite her age, Kruger is widely respected as an appellate litigator, has impressed on the California Supreme Court, and is a very real contender for a spot on the high court.

An L.A. native, Kruger received a B.A. magna cum laude from Harvard University and a J.D. from Yale Law School.  She then clerked for Judge David Tatel on the U.S. Court of Appeals for the D.C. Circuit and for Justice John Paul Stevens on the U.S. Supreme Court.  After a couple of years as an Associate at Wilmer Hale, Kruger joined the U.S. Solicitor General’s Office, spending six years there and arguing 12 cases before the U.S. Supreme Court.  She then moved to the Department of Justice Office of Legal Counsel in 2013.

In November 2014, California Governor Jerry Brown appointed Kruger to the California Supreme Court, replacing Justice Joyce Kennard, where she, along with fellow Brown nominees Goodwin Liu, Tino Cuellar, and Joshua Groban, have shaped a liberal revival on the Court.

This is not to say that Kruger has been predictable or outcome-driven.  Rather, she has been described as an incrementalist and swing vote.  She has voted with the court’s conservatives far more often than Liu or Cuellar and has generally proved moderate in her judging.  Nonetheless, Kruger has also been willing to speak boldly when the law requires it.  This year, she wrote for a unanimous court in reversing a death sentence for convicted murderer Scott Peterson, finding that the trial court violated Supreme Court precedent in its jury selection.  Similarly, in 2019, Kruger wrote for the Court in reversing the death sentence of a white supremacist based on prejudicial comments raised by the prosecutor.  Again, every justice concurred with Justice Kruger’s opinion.

As a whole, despite her youth, Kruger is unquestionably qualified for the Supreme Court, and could prove an intriguing choice for an Administration eager to make history by naming the first African American woman to the Supreme Court.

Judge Srikanth “Sri” Srinivasan – U.S. Court of Appeals for the D.C. Circuit

There may not be a better testament to Judge Srinivasan’s reputation than the fact that he won unanimous approval to one of the most important courts in the country at a time when judicial battles were at their most heated.  During his confirmation to the D.C. Circuit, Srinivasan won plaudits from both sides of the aisle for his distinguished career (including a clerkship with Justice Sandra Day O’Connor) and his apolitical background.  While Srinivasan is not a Black woman, he may nonetheless be an appealing choice for confirmation in a Republican Senate, particularly if President Biden needs to replace a more conservative justice.

Born in India, Srinivasan moved with his family to Lawrence, Kansas, when he was four years old.  Srinivasan received a B.A., M.B.A., and J.D. from Stanford University and clerked for Judge J. Harvie Wilkinson on the U.S. Court of Appeals for the Fourth Circuit, and then for Justice Sandra Day O’Connor on the U.S. Supreme Court.

After his clerkships, Srinivasan practiced as an appellate litigator at O’Melveny & Myers, and also served in the Office of the Solicitor General for five years under President George W. Bush.  In 2011, Srinivasan was appointed to be Principal Deputy Solicitor General, ultimately arguing 25 cases before the U.S. Supreme Court over the course of his career.

In 2010, Srinivasan was vetted for a seat on the D.C. Circuit by President Obama, but Obama backed away due to liberal opposition and chose New York Solicitor General Caitlin Halligan for the vacancy (Halligan was ultimately filibustered for the Court by Republicans).  For his part, Srinivasan was nominated in 2012 to a different seat and confirmed in 2013 with unanimous support from the Senate.  During his confirmation, Srinivasan received rave reviews from prominent conservatives, who praised him as “highly respected.”

On the D.C. Circuit, Srinivasan has largely served as a center-left voice, pushing the once-conservative court to the left.  He has generally been more deferential to agency rulemaking, upholding labor regulations that guaranteed overtime and minimum wage to home health care workers. More recently, Srinivasan joined the majority of the en banc court in holding that former White House Counsel Don McGahn could be compelled to testify by the U.S. House, and joined the majority in dismissing Michael Flynn’s petition for mandamus seeking dismissal of charges against him.

In 2016, Srinivasan was one of three finalists for the Supreme Court nomination that ultimately went to Judge Merrick Garland.  Today, Srinivasan remains a worthy contender for the Court.  Additionally, like Kruger or Jackson, Srinivasan would also make history on the court, as  the first Asian American, Indian American, and Hindu American on the Supreme Court.

Judge Paul Watford – U.S. Court of Appeals for the Ninth Circuit

When Paul Watford was first nominated for the Ninth Circuit in 2011, Republicans recognized the telegenic young attorney as a future SCOTUS-shortlister and lined up to oppose him, despite not really having a basis for doing so.  Luckily for Watford, enough Republicans broke from the pack  to allow him to clear the then-60 vote cloture threshhold and be confirmed.  Today, the 53-year-old judge, who was nipped at the post for a Supreme Court nomination in 2016, would be strongly considered for a vacancy, particularly if Justice Clarence Thomas chooses to step down.

A California native, Watford received a B.A. from U.C. Berkley and a J.D. from U.C.L.A. School of Law before clerking for Judge Alex Kozinski on the Ninth Circuit and Justice Ruth Bader Ginsburg on the Supreme Court.  After his clerkships, Watford worked as a federal prosecutor in Los Angeles and then served as an L.A. Partner at Munger Tolles & Olson for ten years before President Obama tapped him for the federal bench.  At the time of his nomination, Watford won rave reviews from California Republicans, who described him as non-ideological and “very moderate.”  Nonetheless, Republicans quickly lined up to oppose Watford, complaining that Watford has assisted in a legal challenge to Arizona’s strict immigration law (the law was ultimately blocked by the U.S. Supreme Court).  Nonetheless, nine Republicans broke ranks and pushed Watford past a filibuster and onto the bench.  (Of the nine, three, Senators Collins, Graham, and Murkowski, will still be in the Senate in 2021).

In 2016, when Justice Antonin Scalia died, Watford was the third of President Obama’s shortlist for the appointment (with Judge Merrick Garland getting the appointment).

On the Ninth Circuit, Watford has forged a moderate path, serving as a swing vote on the closely divided court.  For example, in 2019, Watford sided with conservative judge Diarmund O’Scannlain in upholding the Trump Administration’s “Remain in Mexico” policy regarding asylum applicants (with Judge William Fletcher dissenting).  Similarly, in 2017, Watford broke in dissent from two Democratic appointees on the Ninth Circuit in affirming a district court order to the Government to provide a broad array of documents relating to the rescinding of DACA.  Watford’s position was ultimately upheld unanimously by the Supreme Court.

That’s not to say that Watford is conservative.  In 2018, he joined Judge Michelle Friedland’s opinion holding that a Catholic school teacher could bring an employment discrimination case against his employer without being bound under the “ministerial exception.”  Similarly, Watford authored a 7-4 en banc decision of the Ninth Circuit holding that the Fourth Amendment bars a Los Angeles regulation requiring hotels to retain guest records (the ruling was upheld 5-4 by the Supreme Court).

Given his stellar credentials, moderate reputation, and respect among the conservative legal community, Watford would be an intriguing choice for the Biden Administration.

Overall, if a Supreme Court vacancy opens over the next two years with a Republican Senate overseeing the confirmation, I expect Biden to choose one of these four jurists. Each are impeccably credentialed, experienced, and moderate enough to draw some Republican support.