Leaving the bench, 1970-2009: The choices federal judges make, what influences those choices, and their consequences

University of Pennsylvania Law Review

Volumn 161, Issue 1, 2012, Pages 1-102

  Burbank, Stephen B ^a   Jay Plager, S ^b   Ablavsky, Gregory ^b  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

^b NONE

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[No Author keywords available]

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EID: 84870685740     PISSN: 00419907     EISSN: 19428537     Source Type: Journal    
DOI: None     Document Type: Article

References (136)

1. John Jurgensen, When to Leave the Stage, Wall St. J., Dec. 3, 2010, at D1.
2. See Report of the National Commission on Judicial Discipline and Removal i-v (1993);
3. see also Stephen B. Burbank & S. Jay Plager, Foreword: The Law of Federal Judicial Discipline and the Lessons of Social Science, 142 U. Pa. L. Rev. 1, 2-10 (1993) (describing the origins, statutory mandate, and research program of the Commission).
4. See Emily Field Van Tassel, Why Judges Resign: Influences on Federal Judicial Service, 1789 to 1992, in 2 RESEARCH PAPERS OF THE NATIONAL COMMISSION ON JUDICIAL DISCIPLINE AND REMOVAL 1137 (1993).
5. A revised version of this report appears as Emily Field Van Tassel, Resignations and Removals: A History of Federal Judicial Service-and Disservice-1789-1992, 142 U. Pa. L. Rev. 333 (1993) [hereinafter Van Tassel, Resignations and Removals].
6. See generally STANLEY I. KUTLER, JUDICIAL POWER AND RECONSTRUCTION POLITICS (1968).
7. See 81 CONG. REC. 1120 (1937) (statement of Rep. Celler).
8. The Supreme Court held that the salary of a judge serving in senior status (then called "retired") may not be reduced in Booth v. United States, 291 U. S. 339, 345 (1934).
9. See, e.g., 81 CONG. REC. 1120 (statement of Mr. Fish).
10. See, e.g., 57 CONG. REC. 383 (1918) (statement of Mr. Gard) (advocating a "general rule" instead of "a multitude of special bills");
11. See H. R. REP. NO. 76-1323 (1939);
12. S. REP. NO. 76-751 (1939). Judge Posner has noted the oddity under current law that "if the judge is declared disabled against his will and forced to retire, he will receive full pay for life regardless of how few years of service he has"
13. RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 32 n. 58 (1996).
14. See 135 CONG. REC. 7570 (1989) (statement of Rep. Kastenmeier).
15. see Biographical Directory of Federal Judges, FED. JUDICIAL CTR., http://www.fjc.gov/history/home.nsf/page/judges.html (last visited Oct. 11, 2012), we have sought to replicate Van Tassel's methodology as closely as possible. We have sorted the reasons for resignation into the same seventeen categories she used.
16. See also Authorized Judgeships-From 1789 to Present, U. S. COURTS, http://www.uscourts.gov/uscourts/JudgesJudgeships/docs/allauth.pdf (last visited Oct. 11, 2012). Temporary judgeships, the Court of Appeals for the Federal Circuit, the District Court of Puerto Rico, and the Court of International Trade were excluded for the purposes of this calculation.
17. See WAN HE ET AL., U. S. CENSUS BUREAU, 65+ IN THE UNITED STATES: 2005, at 60-63(2005), available at http://www.census.gov/prod/2006pubs/p23-209.pdf.
18. Kenneth Ofgang, District Judge Schiavelli to Step Down, METROPOLITAN NEWS-ENTERPRISE (L. A., Calif.), Sept. 2, 2008, at 1 (describing the resignation of George P. Schiavelli following a knee injury).
19. See Bob Egelko, Governor Picks Latino for State's Highest Court-Son of East Los Angeles Produce Dealer Would Quit U. S. Judgeship to Replace Late Justice Mosk, S. F. CHRON., Sept. 27, 2001, at A1 (describing the appointment of U. S. District Judge Carlos Moreno to the California Supreme Court);
20. Josh Richman, Judge in Wal-Mart Lawsuit Tapped for Court of Appeals, TRIVALLEY HERALD (Pleasanton, Cal.), Jan. 29, 2008 (U. S. District Judge Martin J. Jenkins);
21. Governor Schwarzenegger Appoints Nora Manella to Second District Court of Appeal, CA. GOV (March 9, 2006), http://gov. ca.gov/news.php?id=373 (U. S. District Judge Nora Manella).
22. See DEA Chief Optimistic, SAN JOSE MERCURY NEWS (Cal.), Aug. 17, 1990, at 16A.
23. Louis Freeh (S. D. N. Y.) was appointed Director of the FBI by President Bill Clinton, and served until the end of Clinton's presidency.
24. Ann Devroy & Michael Isikof, Federal Judge Nominated as New FBI Head-Ex-Prosecutor, Agent, Would Succeed Sessions, WASH. POST, July 21, 1993, at A1.
25. Michael Chertof (3d Cir.) was appointed Secretary of Homeland Security by President George W. Bush in 2005 and served until 2009.
26. See Richard W. Stevenson & Eric Lichtblau, Bush Names Judge as Homeland Security Secretary, N. Y. TIMES, Jan. 12, 2005, at A1;
27. Spencer S. Hsu, Bush Homeland Security Officials to Stay on Till Weds, WASH. POST (Jan. 19, 2009, 12:00 PM), http://voices.washingtonpost.com/44/2009/ 01/19/bush-homeland-security-officia.html?wprss=44.
28. Mark R. Filip (N. D. Ill.) was appointed Deputy Attorney General by President George W. Bush in 2008 and served until 2009.
29. See Dan Eggen, Senate Confirms New No. 2 for Justice Dept., WASH. POST, Mar. 4, 2008, at A4;
30. Spencer S. Hsu, Many Bush Officials Held Over at DHS, WASH. POST, Jan. 23, 2009, at A4.
31. At the time they resigned, the three judges received pay increases by joining the California bench of roughly $17, 000, $5, 000, and $35, 000 per year, respectively. Compare 37 SURVEY JUD. SALARIES (Nat'l Ctr. for State Courts), no. 1, 2012, available at http://contentdm.ncsconline. org/cgi-bin/showfile.exe?CISOROOT=/judicial&CISOPTR=337 (reporting state salaries)
32. with Judicial Salaries Since 1968, U. S. COURTS, http://www.uscourts.gov/ Viewer.aspx?doc=/uscourts/JudgesJudgeships/docs/JudicialSalarieschart.pdf (last visited Oct. 11, 2012) (reporting federal salaries).
33. U. S. Judge Quits Post in Texas-She Was State's 1st Black Federal Jurist, DALL. MORNING NEWS, Aug. 16, 1988, at 21A.
34. William Polk, Judge Irving Resigns over Sentencing Rules, SAN DIEGO EVENING TRIB., Sept. 27, 1990, at A-1.
35. Ann Belser, Isolation of Court Drives Judge from the Bench: Timothy K. Lewis Joining Local Law Firm After 8 Years, PITTSBURGH POST-GAZETTE, July 1, 1999, at B-4.
36. Kate Coscarelli, District Judge Will Step Down-Respected Jersey Jurist Becomes 8th in the Court's History to Resign, STAR-LEDGER (Newark, N. J.), Feb. 20, 2003, at 21.
37. H. R. Res. 207, 103d Cong. (1993);
38. H. R. Res. 176, 103d Cong. (1993);
39. Joan McKinney, Bill Clinton Receives Collins' Resignation, ADVOCATE (Baton Rouge, La.), Aug. 7, 1993, at 1-B.
40. Berny Morson, Judge Nottingham Quits Amid Inquiry; He Faced Possible Impeachment in Misconduct Case, ROCKY MTN. NEWS (Denver, Colo.), Oct. 22, 2008, at 5.
41. Chris Paschenko, From Behind Bars Kent Resigns From Bench, GALVESTON COUNTY DAILY NEWS (Tex.), June 26, 2009.
42. See Letter from Edith H. Jones, Chief Judge, U. S. Court of Appeals for the Fifth Circuit, to Samuel B. Kent, Judge, U. S. Dist. Court for the S. Dist. of Tex. (May 27, 2009), available at http://www.ca5.uscourts.gov/News/news/ DeguerinResponseLetter.pdf (denying request to certify disability).
43. 90 CONG. REC. 3871 (1944) (statement of Rep. Walter).
44. H. R. REP. NO. 78-934, at 2 (1943)..
45. See ADMIN. OFFICE OF THE U. S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS tbl. C-1 (1970, 1979, 1989, 1999, & 2009) (civil). Criminal case terminations increased 204%: 36, 819 criminal cases terminated in 1970, 33, 442 in 1979, 42, 810 in 1989, 56, 511 in 1999, and 75, 077 in 2009.
46. See RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 97-119 (1985);
47. The quotation is attributed to Justice Brandeis. DAVID M. O'BRIEN, STORM CENTER: THE SUPREME COURT IN AMERICAN POLITICS 122 (9th ed. 2011) (citing Charles E. Wyzanski, Whereas-A Judge's Premises 61 (1944)).
48. See U. S. GOV'T ACCOUNTABILITY OFFICE, GAO/GGD-99-37R, FEDERAL JUDICIARY: INFORMATION ON THE WEIGHTED FILINGS ASSIGNED TO SENIOR DISTRICT AND MAGISTRATE JUDGES IN FISCAL YEAR 1997 IN 21 DISTRICT COURTS (1999) [hereinafter GAO 1999 Letter];
49. U. S. GOV'T ACCOUNTABILITY OFFICE, GAO/GGD-99-17R, FEDERAL JUDICIARY: INFORMATION ON CASES ASSIGNED TO SENIOR JUDGES IN FISCAL YEAR 1997 IN FOUR CIRCUIT COURTS OF APPEALS (1998) [hereinafter GAO 1998 Letter].
50. Responding to the Growing Need for Federal Judgeships-The Federal Judgeships Act of 2009: Hearing Before the Subcomm. on Admin. Oversight and the Courts of the S. Comm. on the Judiciary, 111th Cong. 8-9 (2009) (statement of J. George Z. Singal, Chair of the Judicial Conference Comm. on Judicial Resources);
51. See Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. EMPIRICAL LEGAL STUD. 459, 460-65 (2004).
52. See Stephen B. Burbank, Vanishing Trials and Summary Judgment in Federal Civil Cases: Drifiing Toward Bethlehem or Gomorrah?, 1 J. EMPIRICAL LEGAL STUD. 591, 617-18 (2004).
53. "While there were nearly 7000 more cases terminated on the merits than procedural terminations in 1992, this difference was only 2131 in the 2009 term, with 30, 160 merits terminations and 28, 029 procedural terminations." Todd Collins, Re-Opened for Business? Caseloads, Judicial Vacancies, and Backlog in the Federal Circuit Courts, 95 JUDICATURE 20, 24 (2011).
54. Jon O. Newman, Restructuring Federal Jurisdiction: Proposals to Preserve the Federal Judicial System, 56 U. CHI. L. REV. 761, 766 (1989).
55. see also Owen M. Fiss, The Bureaucratization of the Judiciary, 92 YALE L. J. 1442, 1456 (1983) ("The proliferation of staff and subjudges and the delegation of power to them weaken the judge's individual sense of responsibility.");
56. See ADMIN. OFFICE OF THE U. S. COURTS, REPORT OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES v-vi (1970), available at http://www.uscourts.gov/FederalCourts/JudicialConference/Proceedings/ Proceedings.aspx?doc=/uscourts/FederalCourts/judconf/proceedings/1970-10.pdf.
57. See ADMIN. OFFICE OF THE U. S. COURTS, REPORT OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES 4-36(2009), available at http://www.uscourts.gov/FederalCourts/JudicialConference/Proceedings/ Proceedings.aspx?doc=/uscourts/FederalCourts/judconf/proceedings/2009-09.pdf.
58. The information presented on authorized judgeships is available at U. S. COURTS, http://www.uscourts.gov/JudgesAndJudgeships/AuthorizedJudgeships.aspx (last visited Oct. 11, 2012).
59. Admin. Office of the U. S. Courts, Work of Senior Judges (on file with authors). Note that the Administrative Office defines "trial" very broadly to include "hearings on temporary restraining orders and preliminary injunctions, hearings on contested motions, miscellaneous civil cases, and other contested proceedings in which evidence is introduced." ADMIN. OFFICE OF THE U. S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS (2009), at 180 tbl. C-7 note.
60. MDL Statistics Report-Distribution of Pending MDL Dockets, U. S. JUDICIAL PANEL ON MULTIDISTRICT LITIG., http://www.jpml.uscourts.gov/sites/jpml/files/ Pending-MDL-Dockets-By-District-September-2012.pdf (last visited Oct. 11, 2012).
61. See 28 U. S. C. § 331 (2006).
62. During the 2000-2009 decade, seven district judges in senior status served on the Judicial Conference, two of whom served for more than one term. To access the Reports of the Proceedings of the Judicial Conference of the United States from 2000 through 2009
63. see http://www.uscourts.gov/FederalCourts/JudicialConference/Proceedings. aspx (last visited Oct. 11, 2012).
64. See ADMIN. OFFICE OF THE U. S. COURTS, REPORT OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES 5-6, 11-12(2008), available at http://www.uscourts.gov/FederalCourts/JudicialConference/Proceedings/ Proceedings.aspx?doc=/uscourts/FederalCourts/judconf/proceedings/2008-09.pdf.
65. Pay Charts and Tables, U. S. COURTS, http://www.uscourts.gov/ JudgesandJudgeships/JudicialCompensation/PayChartsTables.aspx (last visited Oct. 11, 2012).
66. Note that there were substantial Quadrennial Commission increases effective March 1, 1969, as a result of which 1969 was the year of the "highest real salaries for federal judges since at least 1913." DENIS STEVEN RUTKUS, CONG. RESEARCH SERV., RL34281, JUDICIAL SALARY: CURRENT ISSUES AND OPTIONS FOR CONGRESS 3(2008), available at http://www.fas.org/sgp/crs/misc/ RL34281.pdf.
67. Federal Judicial Pay Increase Fact Sheet, U. S. Courts, http://www.uscourts.gov/JudgesAndJudgeships/JudicialCompensation/ JudicialPayIncreaseFact.aspx (last visited Oct. 11, 2012).
68. For the understanding of the 1989 legislation, see 135 CONG. REC. 29, 686 (1989) (statement of Sen. Mitchell) ("a series of measures that are interrelated");
69. Ronald J. Ostrow, End Tax on Senior Judges, Burger Urges, L. A. TIMES, Jan. 22, 1986, at 17.
70. Robinson, 905 F.2d at 1201
71. (describing the effect of the Consolidated Omnibus Budget Reconciliation Act of 1985, Pub. L. No. 99-272, § 12112 (b), 100 Stat. 288 (1986)).
72. "While it is still subject to federal income taxation, New York State (along with several other states) and New York City exempt senior-status compensation from state and city income taxes." Frederic Block, Senior Status: An "Active" Senior Judge Corrects Some Common Misunderstandings, 92 CORNELL L. REV. 533, 539 (2006).
73. 2 GUIDE TO JUDICIARY POLICY § 1020.25 & 1020.30(2010), available at http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/RulesAndPolicies/conduct/ Vol02C-Ch10.pdf.
74. The level II salary for 2011 is $179, 700. Salary Table No. 2012-EX, U. S. OFFICE OF PERS. MGMT., http://www.opm.gov/oca/12tables/html/ex. asp (last visited Oct. 11, 2012).
75. ADMIN. OFFICE OF THE U. S. COURTS, SENIOR STAT U S AND RETIREMENT FOR ARTICLE III JUDGES 15 (1999).
76. See Richard T. Boylan, Do the Sentencing Guidelines Influence the Retirement Decisions of Federal Judges?, 33 J. LEGAL STUD. 231, 232-34 (2004);
77. See, e.g., Temporary Bankruptcy Judgeship Bill Passes, U. S. COURTS (May 31, 2012), http://news.uscourts.gov/temporary-bankruptcy-judgeship-bill-passes.
78. Compare James F. Spriggs & Paul J. Wahlbeck, Calling It Quits: Strategic Retirement on the Federal Courts of Appeals, 1893-1991, 48 POL. RES. Q. 573, 588-89 (1995) (finding evidence of strategic retirements)
79. with Christopher J. W. Zorn & Steven R. Van Winkle, A Competing Risks Model of Supreme Court Vacancies, 1789-1992, 22 POL. BEHAV. 145, 157 (2000) (finding "little" evidence).
80. See also Thomas G. Hansford et al., Politics, Careerism, and the Voluntary Departures of U. S. District Court Judges, 38 Am. Pol. Res. 986, 998-99 (2010) (finding evidence of partisan motivation in the timing of departures by district court judges from regular active service, but only among pension-eligible judges).
81. For a summary of empirical studies, see Terri Peretti & Alan Rozzi, Modern Departures from the U. S. Supreme Court: Party, Pensions, or Power?, 30 QUINNIPIAC L. REV. 131, 138-47 (2011).
82. See, e.g., Albert Yoon, Pensions, Politics, and Judicial Tenure: An Empirical Study of Federal Judges, 1869-2002, 8 AM. L. & ECON. REV. 143, 147-48 (2006) (failing to reflect different requirements for senior status and retirement in the period from 1954 to 1983);
83. See Albert Yoon, As You Like It: Senior Federal Judges and the Political Economy of Judicial Tenure: 1945-2000, 2 J. EMPIRICAL LEGAL STUD. 495, 526 (2005). Yoon's aggregate data cover a period, 1919-2002, during which there were two changes (in 1954 and 1984) in the rules governing eligibility for senior status.
84. See, e.g., Richard L. Vining, Jr., Politics, Pragmatism, and Departures from the U. S. Courts of Appeals, 1954-2004, 90 SOC. SCI. Q. 834, 837-38 (2009).
85. Richard L. Vining, Jr., Judicial Departures and the Introduction of Qualified Retirement, 1892-1953, 30 JUST. SYS. J. 139, 139 (2009) (arguing that "personal and institutional factors were more influential than political considerations" in judicial retirements and resignations).
86. Albert Yoon, Love's Labor's Lost? Judicial Tenure Among Federal Court Judges: 1945-2000, 91 CALIF. L. REV. 1029, 1048-49 (2003) ("pension qualification"). In addition, changes in the rules regarding both senior status and retirement during the period studied (1945-2000) call into question Yoon's use of "pension qualification. " Vining acknowledges that statistical analysis of systematic data cannot capture a host of potential personal considerations that may influence judges.
87. See Wilfred Feinberg, The Office of Chief Judge of a Federal Court of Appeals, 53 FORDHAM L. REV. 369, 384 (1984) ("For most federal judges, including this one, deciding cases is much more interesting than presiding at, or preparing for, meetings.").
88. 90 CONG. REC. 3871 (1944) (statement of Rep. Walter).
89. ADMIN. OFFICE OF THE U. S. COURTS, REPORT OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES 22(1950), available at http://www.uscourts.gov/FederalCourts/JudicialConference/Proceedings/ Proceedings.aspx?doc=/uscourts/FederalCourts/judconf/proceedings/1950-09.pdf.
90. Letter from William R. Burchill, Jr., Gen. Counsel, Admin. Office of the U. S. Courts, to Stephen Burbank (Aug. 17, 1989) (on file with authors).
91. REPORT OF THE JUDICIAL CONFERENCE COMMITTEE ON THE JUDICIAL BRANCH 7 (1989) (on file with authors).
92. See, e.g., U. S. GOV'T ACCOUNTABILITY OFFICE, GAO-10-417, FEDERAL COURTHOUSE CONSTRUCTION: BETTER PLANNING, OVERSIGHT, AND COURTROOM SHARING NEEDED TO ADDRESS FUTURE COSTS 42 (2010) [hereinafter Better Planning];
93. U. S. GOV'T ACCOUNTABILITY OFFICE, GAO-06-613, FEDERAL COURTHOUSES: RENT INCREASES DUE TO NEW SPACE AND GROWING ENERGY AND SECURITY COSTS REQUIRE BETTER TRACKING AND MANAGEMENT 39 (2006) [hereinafter RENT INCREASES].
94. See Russell Wheeler, Changing Backgrounds of U. S. District Judges: Likely Causes and Possible Implications, 93 JUDICATURE 140, 143-44 (2010) ("In short, most district judges appointed from the judiciary had private practice-dominated careers before becoming judges, but the length of those careers has decreased.").
95. During the administrations of Presidents Carter, Reagan, George H. W. Bush, and Clinton, 18 law professors were appointed to the district courts, while 24 were appointed to the courts of appeals. Sheldon Goldman et al., W. Bush's Judiciary: The First Term Record, 88 JUDICATURE 244, 269 tbl.2, 274 tbl.4 (2005). Obviously the difference becomes much more pronounced when one considers the respective total numbers of district and circuit judges.
96. Stephen B. Burbank, On the Study of Judicial Behaviors: Of Law, Politics, Science and Humility, in WHAT'S LAW GOT TO DO WITH IT? WHAT JUDGES DO, WHY THEY DO IT, AND WHAT'S AT STAKE 41, 53 (Charles G. Geyh ed., 2011).
97. H. R. REP. NO. 85-171, at 4 (1957).
98. See, e.g., David R. Stras & Ryan W. Scott, Are Senior Judges Unconstitutional?, 92 CORNELL L. REV. 453 (2007).
99. See Betty Binns Fletcher, A Response to Stras & Scott's Are Senior Judges Unconstitutional?, 92 CORNELL L. REV. 523, 525 (2007) ("I admire the authors' imaginations-posing what I see as imaginary problems and nonsolutions to the problems they have created.").
100. See 28 U. S. C. §§ 372 (b), 354 (a) (2) (B) (i) (2006).
101. See JUDICIAL CONF. OF THE U. S., STRATEGIC PLAN FOR THE FEDERAL JUDICIARY 9 (2010) [hereinafter Strategic Plan];
102. JUDICIAL CONF. OF THE U. S., LONG RANGE PLAN FOR THE FEDERAL COURTS 84 (1995) [hereinafter Long Range Plan].
103. Dan M. McGill, Disincentives to Resignation of Disciplined Federal Judges in the Benefits Package of the Federal Judiciary, in 2 RESEARCH PAPERS OF THE NATIONAL COMMISSION ON JUDICIAL DISCIPLINE & REMOVAL 1221, 1245 (1993).
104. For instances when judges reportedly retired because of dissatisfaction, see GEORGE LA PLATA, FROM THE BARRIO TO THE BENCH 218-20 (2008) (describing how Judge La Plata had come to find judging "a bit boring", as well as lonely and isolating);
105. Carol D. Leonnig, Court Honors Judge Who Laid Down Law; Norma Holloway Johnson Retires from U. S. Bench, WASH. POST, JAN. 29, 2004, at T4 (reporting that friends stated that Johnson was exhausted from the workload);
106. Haven Tobias, The Common Law of Judge Luther Boyd Eubanks 8-10, available at http://www.10thcircuithistory.org/pdfs/Eubanks-bio.pdf (attributing Judge Eubanks's retirement to frustration with merely "counting dispositions" as a result of increasing caseload). For instances when judges complained of an inadequate salary in explaining their retirement decisions
107. see Bob Egelko, Federal Judge Retires to Join S. F. Arbitration Firm, S. F. CHRON., APR. 21, 2001, at A20 (quoting Judge Legge's statement upon return to private practice that "[o]ur salaries here just don't keep up with our cost of living");
108. Michael P. Mayko, Longtime Federal Judge Calls It Quits, CONN. POST (Bridgeport), Jan. 31, 2009 (recording the complaint of Judge Alan Nevas that "Congress voted themselves a raise this year, but they continue to treat federal judges as if they were second-class citizens⋯. What they are doing is unfair and unrealistic").
109. See Donna Walter, Judge Stephen N. Limbaugh Sr. Will Step Down So Limbaugh Jr. Can Take Seat, ST. LOUIS DAILY REC. & ST. LOUIS COUNTIAN, June 11, 2008;
110. Mark Binker, Osteen Jr. to Replace Father in Judgeship, GREENSBORO NEWS & REC. (N. C.), Sept. 11, 2007, at B1.
111. see also Neil A. Lewis, Judge Agrees to Step Aside to Aid Her Son, N. Y. TIMES, May 8, 1996, at B11.
112. John S. Martin, Jr., Op-Ed, Let Judges Do Their Jobs, N. Y. TIMES, June 24, 2003, at A31. He then retired rather than continue in senior status. According to his son, Judge Jesse Curtis also cited frustration with the federal sentencing guidelines in his decision to retire.
113. Bob Egelko, Jesse Curtis Jr.-Judicial Work Was in His Blood, S. F. CHRON., Aug. 8, 2008, at B5.
114. Judge Robert Aguilar was prosecuted for seven years for illegal disclosure of wiretap information, but prosecutors abandoned further judicial proceedings after the Ninth Circuit reversed his conviction and Aguilar retired. Bob Egelko, Judge Aguilar Retires After Last Charge Dropped, CONTRA COSTA TIMES (CAL.), June 25, 1996, at A11.
115. See Douglas Jehl, Judge on a Return Mission to Politics, N. Y. TIMES, Aug. 12, 1994, at A15 (recounting Judge Abner Joseph Mikva's appointment as White House Counsel);
116. Today in Congress, WASH. POST, Oct. 10, 1985, at A12 (noting the appointment and confirmation of former federal judge Malcolm Wilkey as ambassador to Uruguay);
117. Jerry Zeifman, War Tribunal Cleans Up Its Act, WASH. TIMES, Oct. 25, 1999, at 26 (describing Judge Patricia Wald's appointment as Chief Justice of the International Tribunal for the Former Yugoslavia).
118. As authorized by Pub. L. No. 95-486, § 6, 92 Stat. 1629, 1633(1978), the Ninth Circuit sits en banc with eleven judges, drawn by lot. A judge in senior status who was on the panel "may elect to be eligible to be selected as a member of the en banc court"
119. 9TH CIR. GEN. ORDERS § 5. 1. a.4, available at http://www.ca9. uscourts.gov/datastore/uploads/rules/general-orders/general-orders11-11.pdf. For a description of the Ninth Circuit's en banc process and its unique use of a judge as en banc coordinator
120. see Stephen L. Wasby, "A Watchdog for the Good of the Order": The Ninth Circuit's En Banc Coordinator, 12 J. APP. PRAC. & PROCESS. 91 (2011).
121. The termination data are derived from Table S-1 in the annual statistics published by the Administrative Office of the United States Courts. See Judicial Business of the U. S. Courts, U. S. COURTS, http://www.uscourts.gov/Statistics/ JudicialBusiness.aspx (last visited Oct. 11, 2012). For the data concerning authorized judgeships
122. R. Jeffrey Smith, The Politics of the Federal Bench: GOP-Appointed Majorities Winning Ideological Battles at Appellate Level, WASH. POST, Dec. 8, 2008, at A1.
123. See generally Christopher P. Banks, The Politics of En Banc Review in the "Mini-Supreme Court", 13 J. L. & POL. 377 (1997).
124. See Stephen B. Burbank. Alternative Career Resolution II: Changing the Tenure of Supreme Court Justices, 154 U. PA. L. REV. 1511, 1515-16 (2006) (finding little empirical support for use of such a strategy in appointments to the Supreme Court).
125. (quoting Kristen Kilker & Laura Summers, Who Are Young Retirees and Older Workers?, DATA PROFILES: YOUNG RETIREES AND OLDER WORKERS (Nat'l Acad. Aging Soc'y), June 2000, at 3, available at http://www.agingsociety.org/ agingsociety/pdf/aarp1.pdf).
126. In thinking about ways to diminish the appeal of retirement, we considered a policy of appointing older individuals, which might well have a number of benefits but does not seem achievable (or, unless legislated, enforceable). We also note a recent article advocating a prohibition against practice by federal judges who have resigned or retired. See Mary L. Clark, Judicial Retirement and Return to Practice, 60 CATH. U. L. REV. 841 (2011).
127. See Stephen B. Burbank, Sean Farhang & Herbert M. Kritzer, Private Enforcement of Statutory and Administrative Law in the United States (and Other Common Law Countries) 19-21 (U. PA. L. SCH., PUB. LAW RESEARCH PAPER NO. 11-08, 2011), available at http//ssrn. com/abstract=1781047 (noting doubts about underfunding expressed by some scholars but elaborating reasons why reliance on docket statistics is inadequate).
128. See H. R. REP. NO. 85-171, at 4 (1957);
129. Earl A. Warren, Chief Justice, Address Before the American Law Institute (May 20, 1959), in 36 A. L. I. PROC. 27, 41 (1959).
130. See Judicial Facts and Figures 2009 tbl.2.1, U. S. COURTS, http://www.uscourts.gov/Statistics/JudicialFactsAndFigures/ JudicialFactsAndFigures2009.aspx (last visited Oct. 11, 2012). This total includes all circuit courts except the Federal Circuit.
131. See Kelly J. Baker, Note, Senior Judges: Valuable Resources, Partisan Strategists, or Self-Interested Maximizers?, 16 J. L. & POL. 139, 145 (2000) (discussing the criticism that senior status permits Congress to avoid politically difficult choices).
132. REPORT OF THE FEDERAL COURTS STUDY COMMITTEE 154 (1990).
133. see 28 U. S. C. §§ 331, 332 (a) (3), 621 (a) (2) (2006).
134. Hard Choices and Difficult Issues: The Judiciary Considers Its Financial Future, THIRD BRANCH (Admin. Office of the U. S. Courts), Oct. 2011, at 1.
135. Stephen J. Choi et al., The Law and Policy of Judicial Retirement 3 (N. Y. Univ. L. & Econ. Research Paper No. 11-12, 2011), available at http://ssrn. com/abstract=1792422.
136. Cf. Jeffrey N. Barr & Thomas E. Willging, Decentralized Self-Regulation, Accountability, and Judicial Independence under the Federal Judicial Conduct and Disability Act of 1980, 142 U. PA. L. REV. 25, 136 (1993) ("For a senior judge, the prospect that the chief judge of the circuit might refuse to certify the judge as eligible to continue receiving the salary of the office presents an equally strong reason to accede.").