A Nonagenarian Discusses Life as a Senior Circuit Judge

A senior circuit judge is often asked: What do you people do? What kind of cases do they assign to you? And how many? Do you decide what cases you want to work on? Where do you work? What kind of staff helps you? Do you have any spare time to do legal writing for the public? How often do you do it? Any books? Any articles?.... These are legitimate questions, and I have decided to take a crack at answering them. I do so both because the literature is somewhat sparse (1) and also because senior judges are, by definition, senior citizens, and often the assumption is that they are doddering and "over the hill." At law schools--heavens to Betsy--both faculty and student law review editors don't truck with what they consider the Geritol set, and the general understanding is that senior judges are limited to super-active physical activities like shuffleboard at an AARP conference, hearing an occasional case or two when their schedules permit. Pardon the sexist comment, but this is merely an old wives' tale and it is a glaring misrepresentation of who we senior judges are and what we do. The brute facts indicate that judges in senior status participate meaningfully in court business and contribute a substantial percentage of the total judicial work undertaken in both the federal courts of appeals and federal district courts. (2) In recent years, judges in senior status were responsible for nearly one-fifth of the total participation in appeals considered by the federal courts of appeals across the country: 18.2 percent of those cases in 2008, 17.8 percent in 2009, 21.6 percent in 2010 21.7 percent in 2011, 20.4 percent in 2012, and 19.9 percent in 2013. (3) Although this Article will focus on the experiences of senior judges on the federal courts of appeals, senior judges make meaningful contributions to the federal district courts as well. In 2011 senior district judges were responsible for 17.2 percent of the total case terminations in those courts. (4) I will write primarily about my experiences as part of this cohort, but before I delve too deeply into my own experiences as a senior judge, I believe that it is useful to give a brief description of the statutory authority for the senior judge position, the process by which one becomes a senior judge, the general duties of senior judges, and the expectations for senior judges in my circuit. I. THE SENIOR CIRCUIT JUDGE: A GENERAL DESCRIPTION Until the Judiciary Act of 1869, a federal judge could leave the bench only by resignation or by removal, if he or she was convicted on articles of impeachment. (5) The Judiciary Act of 1869 provided judges with an additional option: retirement with a pension equal to the judge's salary following service of ten years and attainment of the age of seventy. (6) This was followed in 1919 by an additional Act that created yet another option: the position now known as senior judge. (7) At that time, those in the position of senior judge were eligible to function as active judges, receiving the same salary, but with a reduced calendar. Subsequent legislation in 1948 provided that senior judges were eligible for salary increases similar to those authorized for active judges. (8) Since 1989, the five options for leaving the federal judiciary--removal, resignation, retirement, senior status, and death--have remained about the same. The current statute providing for the office of senior judge, 28 U.S.C. [section] 371, provides: (a) Any justice or judge of the United States appointed to hold office during good behavior may retire from the office after attaining the age and meeting the service requirements, whether continuous or otherwise, of subsection (c) and shall, during the remainder of his lifetime, receive an annuity equal to the salary he was receiving at the time he retired. (b) (1) Any justice or judge of the United States appointed to hold office during good behavior may retain the office but retire from regular active service after attaining the age and meeting the service requirements, whether continuous or otherwise, of subsection (c) of this section and shall, during the remainder of his or her lifetime, continue to receive the salary of the office if he or she meets the requirements of subsection (e). …