Which Circuit Judges Could Retire Today?

By Steve Klepper (Twitter: @MDAppeal)

Wow. So Harry Reid went nuclear. Just 51 votes are now required for cloture on votes to confirm U.S. District Judges and U.S. Circuit Judges.

Two questions now come to the forefront:

(1) Will Senator Leahy, Chair of the Senate Judiciary Committee, adhere to the “blue slip” protocol, under which both home-state senators must approve a nominee?

(2) Will there be a flood of judges assuming senior status?

On the first point, I’ll assume that, for now, the blue-slip protocol will remain in place. That makes it highly unlikely, for instance, that any Texas nominees will make it through committee anytime soon.

On the second point, I’ll focus on Circuit Judges. It’s hard to know whether the rate of eligible judges assuming senior status (or outright retiring in favor of other pursuits) will increase in the short term. At least in some cases, eligible Circuit Judges—even Republican appointees—have delayed assuming senior status out of concern for how long it has taken to nominate and confirm replacement judges of late.

But, as I’ve discussed previously on this blog, a Circuit Judge gives up far more prestige and power than does a District Judge in assuming senior status. Different factors drive different Circuit Judges’ decisions. See Stephen B. Burbank et al., Leaving the Bench, 1970-2009: The Choices Federal Judges Make, What Influences Those Choices, and Their Consequences, 161 U. Penn. L. Rev. 1 (2012).

It’s important not to read too much into which President appointed a given Circuit Judge. But that data point is at least a crude indicator of a judge’s inclinations. (In the post-nuclear Article III landscape, party affiliation could become a more reliable indicator for future appointees.)

With that point in mind, I’ve compiled two charts.  The first is of 18 current vacancies and two impending vacancies. I’ve placed an asterisk by the eight instances where either: (a) there is no Republican home-state Senator who could hold up a nominee at the blue-slip stage; or (b) the Republican Senators already have allowed a nominee to proceed. I have not highlighted John Owens who, although a Californian, has been nominated to a seat disputed between California and Idaho.

Nominee Circuit State GOP Sen?
*Patricia Millett D.C. D.C. No
*Nina Pillard D.C. D.C. No
*Robert Wilkins D.C. D.C. No
*David Barron 1st Mass No
None 3d Pa. Yes
None 3d Pa. Yes
*Future 2/28/2014 4th Md. No
None 5th Tex. Yes
None 5th Tex. Yes
Future 12/31/2013 5th Tex. Yes
None 6th Ky. Yes
None 7th Wis. Yes
*Michelle Friedland 9th Cal. No
John Owens 9th ??? ???
*Nancy Moritz 10th Kan. Supports
*Carolyn McHugh 10th Utah Supports
Jill Pryor 11th Ga. Yes
Robin Rosenbaum 11th Fla. Yes
None 11th Ga. Yes
None 11th Ala. Yes

The second chart shows the 52 (that’s right, fifty-freakin’-two out of 159) other Circuit Judges who, as of today, are eligible to assume senior status or to retire outright. I’ve placed an asterisk by 17 instances where: (1) a Democratic President appointed the Circuit Judge; and (2) there is no Republican home-state Senator to block a nominee. Note that some fairly recent nominees are eligible because of prior service as District Judges. (Please leave me a comment if you think I’ve missed one.)

Judge Circuit State GOP Sen? Appt’d by
Karen Henderson D.C. D.C. No Bush 41
*Judith Rogers D.C. D.C. No Clinton
*David Tatel D.C. D.C. No Clinton
Pauline Newman Fed. Fed. No Reagan
Alan Lourie Fed. Fed. No Bush 41
*Timothy Dyk Fed. Fed. No Clinton
*Sandra Lynch 1st Mass. No Clinton
Juan Torruella 1st P.R. No Reagan
Dennis Jacobs 2d N.Y. No Bush 41
*José A. Cabranes 2d Conn. No Clinton
*Rosemary Pooler 2d N.Y. No Clinton
Theodore McKee 3d Pa. Yes Clinton
Marjorie Rendell 3d Pa. Yes Clinton
*Julio Fuentes 3d N.J. No Clinton
D. Michael Fisher 3d Pa. Yes Bush 43
William  Traxler 4th S.C. Yes Clinton
J. Harvie Wilkinson 4th Va. No Reagan
Paul Niemeyer 4th Md. No Bush 41
*Diana Motz 4th Md. No Clinton
*Robert King 4th W. Va. No Clinton
E. Grady Jolly 5th Miss. Yes Reagan
W. Eugene Davis 5th La. Yes Reagan
Jerry Smith 5th Tex. Yes Reagan
James Davis 5th La. Yes Reagan
Edith Clement 5th La. Yes Bush 43
Edward Prado 5th Tex. Yes Bush 43
Alice Batchelder 6th Ohio Yes Bush 41
Danny Boggs 6th Ky. Yes Reagan
Karen Moore 6th Ohio Yes Clinton
*Eric Clay 6th Mich. No Clinton
David McKeague 6th Mich. No Bush 43
Richard Posner 7th Ill. Yes Reagan
Joel Flaum 7th Ill. Yes Reagan
Frank Easterbrook 7th Ill. Yes Reagan
Michael Kanne 7th Ind. Yes Reagan
Ilana Rovner 7th Ill. Yes Bush 41
Richard Wollman 8th S.D. Yes Reagan
James Loken 8th Minn. No Bush 41
*Diana Murphy 8th Minn. No Clinton
Kermit Bye 8th N.D. Yes Clinton
*Harry Pregerson 9th Cal. No Carter
*Stephen Reinhardt 9th Cal. No Carter
Diarmuid O’Scannlain 9th Or. No Reagan
*William Fletcher 9th Cal. No Clinton
*Ronald Gould 9th Wash. No Clinton
*Richard Paez 9th Cal. No Clinton
*Marsha Berzon 9th Cal. No Clinton
Carlos Bea 9th Cal. No Bush 43
Mary Briscoe 10th Kan. Yes Clinton
Gerald Tjoflat 11th Fla. Yes Ford
Frank Hull 11th Ga. Yes Clinton
Stanley Marcus 11th Fla. Yes Clinton
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2 responses to “Which Circuit Judges Could Retire Today?”

  1. Bill Reynolds says :

    Steve, thanks. That was really interesting and helpful for thought. Bill Reynolds

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