At last count, Donald Trump has placed 203 federal judges on the bench, the fact by which all too many rationalize their support for his presidency. A few well-known names helped an otherwise feckless administration reach this milestone: Leonard Leo identified new judges and guaranteed their ideological fitness. Mitch McConnell sped nominees through the Senate, going so far as to hold hearings on a controversial D.C. Circuit nominee during some of the worst days of the pandemic.
But one group assisting the president’s efforts has largely gone unnoticed, and without them the Trump administration may not have had such an outsized effect on the judiciary: Sitting federal judges who decided to retire after the 2016 election—many of whom, one can safely assume, would not have done the same had Hillary Clinton won—opening up seats for Trump to fill.
This phenomenon isn’t limited to conservatives. If Joe Biden wins this November—and, as someone who worries about the rule of law in this country, I fervently hope he does—we will likely see a similar trend, with older, liberal-leaning judges vacating their positions to allow the new president his chance to appoint their successors.
No one is terribly subtle about what’s going on: In May, Lindsey Graham, chairman of the Senate Judiciary Committee, urged conservative judges to retire ASAP so he could bring their replacements before the committee well in advance of Trump’s potential defeat.
Regardless of one’s political persuasion or legal temperament, we should all find the trend of judges stepping down when their preferred party controls the White House worrisome: To preserve the public’s trust, judges normally avoid politics at all costs, but when they choose their moment of retirement, judges openly assist one political movement over another.
Happily, however, there are two ways to solve the problem—and they should be the first items on the short list for judicial-reform proponents in a post-Trump age: Judges can adopt internal ethical guidelines that require jurists to announce their intent to retire well before a presidential election, effective in the next administration. And Congress could mandate by law that judges assume senior status—a kind of semi-retirement which many judges opt to take—as soon as they are eligible, removing the ability of judges to game the date of their successors’ appointments.
Either measure would go a long way toward maintaining the public appearance and private reality of judicial impartiality—and legislation may be particularly appealing to Democrats looking for a path to judicial reform that avoids packing the courts.
For the rule of law to function, judging can’t be just another form of politics.
The good news is that it isn’t.
America’s federal courts admirably exemplify equality before the law in the breach as they administer justice every day, in all kinds of cases, from employment disputes to criminal trials. It was in defense of this noble tradition of impartiality—and against Trump’s contrary vision of a politicized judiciary—that Chief Justice Roberts declared:
We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.
But the mere fact that federal judges decide cases with the utmost professionalism and dedication to the rule of law isn’t the end of the story. It’s equally important that ordinary Americans perceive judges to be nonpolitical. In the vast majority of situations, people comply with a court’s decision—even when they lose the case—not because an authority confronts them at the point of a gun but because litigants know that the ultimate decision-makers ruled fairly. Chip away that public trust and you threaten to undermine the legal order.
The Judicial Conference of the United States—an internal governance body for the federal judiciary—maintains a code of conduct and associated advisory opinions that help judges avoid the mere appearance of impropriety as well as prevent any actually impropriety itself. To take the most obvious, neither judges nor their staff can make public political statements or donate to political parties (though they can register with political parties and vote in primaries). Recently, there was a heated controversy regarding a since-withdrawn draft ethics opinion advising judges to avoid formal membership in the conservative Federalist Society or its liberal equivalent, the American Constitution Society. Whatever your position on the issue—I think that judges probably shouldn’t possess membership in either organization—the recommendation reflects the very real concern that every judge must carefully maintain the public’s trust in the judiciary lest the American legal system stumble.
That’s why it’s especially odd when some judges retire after an election to allow the president they prefer to select their replacement. In that brief moment, judges who so assiduously avoid politics in public openly align themselves with a political party, at a time in our nation’s history when both major parties have made filling the courts and vetting nominees a prominent element of their pitch to voters.
Consider Americans’ perception if an ailing Justice Ginsburg steps aside after Joe Biden’s inauguration. Many would rightly conclude that she didn’t want Donald Trump to choose her successor and so remained in her seat, despite a desire to leave the bench, until a Democrat held the White House. In some ways, that hypothetical Justice Ginsburg’s motivations would be entirely understandable. Having dedicated her career as an advocate and a judge to advancing a particular set of legal values, why shouldn’t she wish her replacement to possess a similar approach to the law?
But by staying on until Biden assumed office, future Justice Ginsburg would also leave the impression that she sought to coordinate, albeit tacitly, with Biden’s campaign for the presidency and his promise to appoint progressive jurists. Worse, the public might grow more jaded in assuming that the legal reasoning in Justice Ginsburg’s decisions from the bench was just window dressing for politics.
To be clear, I do not subscribe to that brand of realism, with respect to the real Justice Ginsburg or her colleagues on the federal bench. But convincing many Americans otherwise is already difficult and becomes harder when justices and politicians tacitly coordinate.
Two potential fixes could preserve public faith in the rule of law but still permit aged jurists to retire.
First—and probably the easier one to accomplish—federal judges could interpret or amend their own code of conduct to require judges to publicly announce well before a November presidential election their intent to vacate their seat at a date after the next inauguration, allowing whatever candidate wins the opportunity to fill their seat. At least one prominent appellate judge already adopted a version of this norm in 2016, but it is by no means universally accepted.
(Though the code of conduct doesn’t apply to Supreme Court justices, one would hope they would follow this particular norm if it applied to all other federal judges.)
To be sure, some judges will still need to retire unexpectedly and thus without announcing their plans in advance, say because of a personal or family crisis. But for everyone else, the rules governing judicial retirement make it easy for judges to determine when they are eligible to leave the bench and to plan accordingly, departing only once every four years.
There is a concern that if judges—especially members of the Supreme Court—pre-commit to retire in advance of an election they will further polarize the national political discourse around “filling the judiciary.” Trump rallied voters in 2016 with a promise to replace the late Justice Antonin Scalia with a Federalist Society-approved successor—and one might expect a similar level of emphasis from both sides if Justice Ginsburg announced her plans today to retire in 2021.
But I’m not sure there are many Americans who care about the Court but don’t already expect the next president to choose at least one Supreme Court nominee, so the effect might be smaller than we think. Better yet, if the justices broadcast an intent not to retire in an upcoming term, that signal could potentially reduce the degree to which the Court is a political football in a given election—though, of course, it wouldn’t eliminate the possibility that a Supreme Court seat becomes available due to a justice’s unplanned departure.
Congress can also achieve a similar result through legislation.
Most judges don’t resign and enter private life, but instead opt to take “senior status,” a kind of semi-retirement that permits them to remain a judge with reduced responsibilities. Federal judges can assume senior status under the so called “rule of 80” (once a judge turns 65 and the sum of the judge’s age and years in service is equal to or more than 80). And most importantly, once a judge “goes senior,” his or her seat opens up for a new appointee. Congress could simply pass a law requiring judges to assume senior status the day they become eligible, thereby ensuring that judges can’t orchestrate their moment of retirement.
Though creative litigants will no doubt argue otherwise, this proposal comports with the Constitution’s requirement that judges “shall hold their Offices during good Behaviour” and receive compensation “which shall not be diminished during their Continuance in Office.” Forcing a judge to go senior looks, at a quick glance, like muscling them into a different judicial office. But in a 1934 case called Booth v. United States, the Supreme Court concluded that the Good Behavior Clause prohibits Congress from reducing senior judges’ salaries—while indicating that what we now call senior judges do in fact continue in the same judicial office they held when they were active (and the current statute confirms that senior judges “retain the office”). Thus, requiring a judge—at least on the inferior courts—to take senior status doesn’t force him or her into a new office, at least for constitutional purposes. Nor is my proposed modification of the judicial retirement system so great that it could be said to change the nature of current judges’ offices.
It’s true that this analysis becomes a little dicier when it comes to the Supreme Court. Some of those who propose that the justices serve fixed terms before retiring to the lower courts have also argued that the offices of justice and judge are so distinct such that one would need a constitutional amendment to enact that scheme. (This whole issue actually intersects with other constitutional provisions—chiefly the Appointments Clause, which requires separate nominations and confirmations whenever someone assumes a new office.) But at least for district court and appellate court judges, legislation mandating senior status shouldn’t pose those serious constitutional concerns. And if this rule were applied by law to lower court judges, Supreme Court justices would feel pressure to adopt it as a norm of their own.
The legislative route may also be harder to achieve in practice, but it should appeal to congressional Democrats: Compared to alternative proposals for judicial reform—particularly court packing—modifying the method of judicial retirement offers a realistic-yet-principled way to “fix” the courts. It has a clear justification rooted in the rule of law and isn’t pure partisan politics. At the same time, if implemented in a Biden administration, it would open up a number of new appointments (though that’s not my motivation for proposing this plan). And unlike court packing, this discrete policy change is a one off: A future Republican-dominated legislature would be harder pressed to adopt their own version of this plan in retaliation, as they surely would if Democrats simply create new judgeships to “balance out” Trump’s nominees. (Indeed, the Democrats’ modest platform calls for a few new judges, mostly on district courts, for which the Judicial Conference itself has asked—and that has already set off howls of protest in conservative legal circles and disappointment in liberal ones, as Ilya Somin recently discussed in Reason.)
Above all, fixing the judicial retirement game is just the right thing to do: Polls routinely show that Americans trust the judiciary more than their counterparts in the political branches—and there’s a good reason for that trust. Judges take an oath to “administer justice without respect to persons, and do equal right to the poor and to the rich”—and, day in and day out, they and their staff make that noble oath a reality. Preventing them from orchestrating their moment of retirement for political gain would help preserve the public’s trust in arguably the finest institution of our republic.