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.

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.)