Did politics make a difference in my decision to take senior status?

Particularly among legal academics and political scientists, there is interest in and speculation about why federal judges take senior status.  See, e.g., Stephen B. Burbank, S. Jay Plager, and Gregory Ablavsky, LEAVING THE BENCH, 1970–2009: THE CHOICES FEDERAL JUDGES MAKE, WHAT INFLUENCES THOSE CHOICES, AND THEIR CONSEQUENCES, 161 University of Pennsylvania Law Review 1 (2012).

Among other things, folks want to know whether the decision is “strategic.”  That is, does a judge taking senior status time his or her decision so as to give the political party that the judge favors an opportunity to nominate the judge’s successor?  I don’t speak for anyone else, but here are my thoughts.

I decided to take senior status as early as permitted, that is, on December 1, 2011.  On that date, my age (65) plus my years of service as a judge exceeded 80.  At that point, if I took senior status, my salary would convert to an annuity, I would be eligible for Social Security retirement benefits, and I would not be required to pay Social Security taxes.   By taking senior status, I would give myself a nice pay bump.  Maybe that was my primary motivation, but I am really not sure.

In the District of Nebraska, it had been the unspoken custom to take senior status as soon as possible so that our court could renew itself with a new judge.  Additionally, in the District of Nebraska, senior status judges are treated respectfully be the chief judge and the active district judges.  These two factors were also very important to my decision.

Was my decision to take senior status about one year before the 2012 Presidential election motivated by who sat in the White House?  That is a  complicated question and I will answer it as truthfully as I can.

Until I became a judge, I had been a low-level partisan and member of the Republican party.   But, I had absolutely no political pull.  Indeed, I would never have become a federal district judge without the quiet but absolutely critical support of three very prominent Nebraska lawyers who were pillars in both state and national  Republican circles.   These were men of uncommon judgment, legal talent, intellectual honesty and toughness. And, since I had prosecuted the impeachment of Paul Douglas, the beloved Nebraska Attorney General, and since Mr. Douglas, a staunch Republican, was a close friend to all three of these men, their willingness to help me was extraordinarily generous.*

So, as I contemplated if and when to take senior status, I was very mindful that I owed a lot to the Republicans who supported my nomination two decades earlier.  But, to be frank, there was a countervailing concern.  The Republican party as I  knew it had vanished.  When it comes to judges, the modern Republican party places a premium on a rigid orthodoxy and I have never trusted “true believers.” While I had absolutely no sense of who the Republicans would nominate,  I was very concerned that my replacement might be an ideologue rather than a good lawyer.  As a consequence, I studied what President Obama had done in the way of nominations to the federal district courts.  In large measure, it appeared that the men and women Obama nominated to the federal district court bench were non-ideological (although frequently left-leaning) and mostly very good lawyers.**

On balance, I decided that if a Democrat got to make the appointment, so be it.  There was no “strategic reason” to delay taking senior status.

To sum up, if my experience is any indication, when a federal district judge considers taking senior status a variety of factors will enter into the decision.  One factor is  likely to be economic.  Another may be the culture and collegiality of the court.  A third may be “strategic.”   It is very hard to say whether one factor is more important than another.


*Five years earlier, and because of my involvement in the Douglas matter, Virginia Smith, an extremely influential Nebraska Congresswoman, actively opposed talk that I might be nominated by President Reagan to succeed Judge Beam who had been elevated to the Court of Appeals.  I well remember going back to Washington and being asked by a DOJ judicial selection official, “What did you do to piss her off?”  Doing my job evidently wasn’t a good enough answer for Mrs. Smith or the political operative at DOJ who questioned me on this subject.  The nomination went to Bill Cambridge at Mrs. Smith’s urging.  (I should add that Bill served with great distinction.  He was a dear friend until his death.)

**My successor is Judge John Gerrard and he was appointed  by President Obama at the urging of Senator Nelson, a Democrat, and Senator Johanns, a Republican.  John was universally regarded as a stellar lawyer and then a highly respected Nebraska Supreme Court Justice.   As I have said many times before, John was and is a great person and a gifted judge–he is no ideologue.

Senate Republicans, the confirmation of federal district judges and Sun Tzu’s first principle of war

In the Art of War, Sun Tzu’s first principle is this: “He will win who knows when to fight and when not to fight.”  The Senate Republicans have forgotten this maxim when it comes to the confirmation process for nominees to the federal district court bench.

With the publication of  The Behavior of Federal Judges  A Theoretical and Empirical Study of Rational Choice (the subject of earlier posts), there is now strong empirical proof that federal district judges as a group do not perform as politicians in black robes.  The authors of the Behavior of Federal Judges, none of whom are “liberals,” conclude that for several reasons the decisions of federal district judges are not much influenced by political ideology.

If the authors are correct (and it is difficult to argue against hard data), why have Senate Republican taken to blocking or slow-walking the confirmation of federal district judges?  From an ideological perspective, Senate Republicans have little to fear if a Democratic district court nominee is confirmed.  From a raw political perspective, it is difficult to see how the confirmation of a district judge matters much to the base.  On the other hand, the less intransigent Republicans are seen to be as a general matter, the better off they would seem to be when it comes to nominees that matter.

Let’s do a thought experiment.  If the Senate Republicans were to confirm district court nominees just as fast as Senator Patrick Leahy wanted, would those same Senate Republicans be in a stronger position politically to raise hell with circuit court nominees or, heaven forbid, nominees to the Supreme Court?*  In my view, to ask the question is to answer it.

Sun Tzu’s first principle of war is not debatable.  Senate Republicans** ignore it at their peril.


*From a normative perspective, my view of a proper confirmation process is rather more elevated.  But, the process as it exists now is broken, and I hold out no hope that it will be fixed anytime soon.  This post makes the (sordid?) “comparative advantage” argument that for district judges, there are good and practical political reasons not to fight.

**When the situation is reversed, and it will be, the same holds true for the Democrats.

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