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Professor Stephen B. Burbank and co-authors warn of judicial retirement threat

August 13, 2012

In the most in-depth look at the subject of federal judicial retirements ever undertaken, a new study co-authored by University of Pennsylvania Law School Professor Stephen B. Burbank, Circuit Judge S. Jay Plager of the U.S. Court of Appeals for the Federal Circuit, and Gregory Ablavsky warns that current compensation policies and perceptions of congressional neglect may prompt a growing number of federal judges to leave the bench upon reaching retirement age, rather than continue to serve in senior status.

Such a development, Burbank cautions, would deprive the country of a cadre of judges whose work “is essential to the functioning of the federal judiciary and justified in cost-benefit terms.” Indeed, he and his co-authors maintain that without a large corps of judges in senior status “the federal judiciary would collapse under the weight of its caseload,” and “civil trials would move from an endangered species to the verge of extinction.”

This warning comes in a new paper, “Leaving the Bench, 1970-2009: The Choices Federal Judges Make, What Influences Those Choices, and Their Consequences,” which is forthcoming in volume 161 of the University of Pennsylvania Law Review. Employing a multi-method research strategy, including extensive questionnaires and focus group discussions with federal judges, the authors analyze judicial retirement over four decades.

Among the study’s key findings, the authors point out:

  • Although resignations have been historically low in recent decades, judges appointed at younger ages are the ones most likely to resign, and they may also be more likely to retire, rather than assume senior status, when they are eligible.
  • The desire to help the judge’s court by creating a vacancy and the desire to take advantage of federal (FICA) tax advantages are the strongest influences on decisions to assume senior status. The desire for more income and seeking new challenges are the primary drivers of judicial retirements.
  • Contrary to much of the political science literature, strategic partisan behavior plays little role in decisions to assume senior status or retire.
  • Judges in senior status voice substantial unhappiness about Congress’s failure to grant a salary increase since 1991 and the lack of annual cost-of-living adjustments.

Considering the dramatic expansion of caseloads in recent decades, Burbank and his co-authors maintain that members of Congress are relying on judges in senior status to “take them off the hook for not authorizing an adequate number of judgeships.”

Excluding the nine members of the U.S. Supreme Court, there are currently 865 authorized positions on the Article III federal bench – 677 at the district (trial) court level, 179 on the courts of appeals, and nine on the Court of International Trade.  

Assuming no vacancies, the authors calculate that it would take an additional 170 authorized judgeships (147 at the district court level and 23 at the circuit level) to provide the judicial work currently being shouldered by judges in senior status, who conducted 26% of all federal trials in 2009 and also provided other judicial and essential administrative service.

The paper tells a story of institutional evolution and adaptation dating to the earliest days of the republic. In order to insure an independent judiciary, the U.S. Constitution specifies that federal judges be appointed for life –“during good behavior” – and guarantees undiminished compensation. The architects of the Constitution contemplated that judges would remain on the bench until death, in part because the young nation couldn’t afford to pay pensions, the authors write.

It wasn’t until 1869 that Congress provided for judicial retirement, reconciling the Constitution’s requirement of life-time appointments and guaranteed pay with the limitations brought on by age. A further reform in 1919 gave judges the option of leaving regular active service but retaining their office and continuing to serve as needed in senior status.

Subsequent legislation modified eligibility requirements and differentiated the compensation of retired judges and judges in senior status. Under current law, judges in senior status, who are not required to do any work, receive cost-of-living increases, and, if they perform one quarter of the services of a judge in regular active service, are eligible for salary increases. But Congress has not granted federal judges a salary increase since 1991. Retired judges receive the compensation to which they were entitled at the time of leaving office in the form of an annuity.

Given the substantial work and crucial role played by judges in senior status today, the authors recommend several policy reforms to ensure that federal judges continue to choose senior status, rather than retire. These include increasing federal judicial salaries to make up the ground lost to inflation over the past two decades, and insuring that federal judges receive automatic cost-of-living adjustments in the future. 

Apart from compensation, the article recommends that the judiciary reexamine identified policies and practices that may discourage judges from assuming or remaining in senior status. Burbank and his colleagues point to a spike in judicial retirements in the last two years. Were that to become a trend, they write, “the country would lose the benefits of the work, experience and wisdom these judges could provide, either by continuing in regular active service or assuming and remaining in senior status.”