Less well-known, but equally important, are the authors' findings concerning the expansion of the lower federal judiciary. At the close of the 40th Congress in 1868 the judiciary was 21 percent the size of the legislative branch. By 1992 it had grown to an institution 50 percent larger than Congress. Interestingly, the proportion of all appointments coming from new judgeships was 44 percent higher for Democratic occupants of the White House. Appointment opportunities also result from being able to replace a departing judge.
Some judges leave voluntarily by either resigning or retiring.
Historically, resignations have accounted for only 37 percent of those leaving the bench voluntarily. By contrast, retirements account for about two-thirds of the voluntary turnover. Like appointments, retirements are partisan in nature. Almost 70 percent of all the retirees left the bench during a Republican presidency. One out of every five judges died in office.