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Abstract:
With burgeoning caseloads and persistent vacancies in many federal courts, senior judges play a vital role in the continued well-being of our federal judiciary. Despite the importance of their participation in the judicial process, however, senior judges raise a host of constitutional concerns that have escaped the notice of scholars and courts. Many of the problems originate with recent changes to the statute authorizing federal judges to elect senior status, including a 1989 law that permits senior judges to fulfill their statutory responsibilities by performing entirely nonjudicial work. Others arise from the ambiguity of the statutory scheme itself, which seems to suggest that senior status represents a separate constitutional office, requiring reappointment, even though senior judges nominally retain judicial office under federal law.

In the first scholarly article addressing the constitutionality of senior judges, the authors examine two general constitutional objections: (1) whether the requirement that senior judges be designated and assigned by another federal judge before performing any judicial work violates the tenure protection of Article III; and (2) whether allowing judges to elect senior status, without a second intervening appointment, violates the Appointments Clause. They also examine whether two specific types of senior judges - the bureaucratic senior judge who performs only administrative duties and the itinerant senior judge who sits exclusively on courts outside his home district or circuit - violate the Constitution.

The authors conclude that the current statute authorizing senior judges raises serious constitutional problems that should be addressed by Congress or the Judicial Conference of the United States. In that respect, they formulate a number of straightforward suggestions to repair senior status without having to sacrifice any of the considerable benefits that senior judges have conferred on the federal judiciary over the years.

senior judges, federal courts, retirement

Abstract:
The first vacancies on the Supreme Court in eleven years have sparked renewed debate about the continued viability of life tenure for federal judges. Scholars have decried life tenure as one of the Framers' worst blunders, pointing to issues such as strategic retirement, longer average tenure, and widespread mental infirmity of justices. In this Article, the authors argue that, notwithstanding the serious problem of mental and physical infirmity on the Court, life tenure should be retained. They also argue that recent statutory proposals to eliminate or undermine life tenure, for example through a mandatory retirement age or term limits, are unconstitutional.

Surprisingly, scholars have failed to take a multidisciplinary approach to the question of life tenure, or to propose alternatives that address its weaknesses without abolishing it. The authors address that gap by adopting an incentives approach to Supreme Court retirement. They first demonstrate that, as an historical and empirical matter, pensions have been the most important factor in influencing the retirement timing of Supreme Court justices and comparable actors over history. Building on that track record, the authors propose that Congress create a golden parachute for Supreme Court justices by doubling their retirement benefits upon reaching an appropriate retirement age or upon certifying a mental or physical disability. They also propose modest institutional reforms that will make the office of senior justice more attractive to justices considering retirement.

Abstract:
The first vacancy on the Supreme Court in eleven years has sparked renewed debate about the continued viability of life tenure for federal judges. Scholars have decried life tenure as one of the Framers' worst blunders, pointing to issues such as strategic retirement, longer average tenure, and widespread mental infirmity of justices. In this Article, the authors argue that, notwithstanding the serious problem of mental and physical infirmity on the Court, life tenure should be retained. They also argue that recent statutory proposals to eliminate or undermine life tenure, for example through a mandatory retirement age or term limits, are unconstitutional.

Surprisingly, scholars have failed to take a multidisciplinary approach to the question of life tenure, or to propose alternatives that address its weaknesses without abolishing it. The authors address that gap by adopting an incentives approach to Supreme Court retirement. They first demonstrate that, as an historical and empirical matter, pensions have been the most important factor in influencing the retirement timing of Supreme Court justices and comparable actors over history. Building on that track record, the authors propose that Congress create a golden parachute for Supreme Court justices by doubling their retirement benefits upon reaching an appropriate retirement age or upon certifying a mental or physical disability. They also propose modest institutional reforms that will make the office of senior justice more attractive to justices considering retirement.

Abstract:
Opposition to life tenure has been steadily mounting in the legal academy and Professors Steve Calabresi and Jim Lindgren are among those leading the charge. Crucial to their argument that life tenure is fundamentally flawed is an empirical claim that the increases in average tenure among Supreme Court Justices are both dramatic and unprecedented.

In this article, the authors respond to Calabresi and Lindgren by showing that their hypothesis of dramatic and unprecedented growth in average tenure has two fundamental flaws. First, it suffers from a period-selection problem. Rendering the data using longer or shorter periods blunts or eliminates the dramatic and unprecedented trend. Second, it suffers from a date-of-observation problem. Treating each Justice's tenure as an observation at date of swearing-in (or at the midpoint of a Justice's career), rather than at date of departure, eliminates the trend altogether. Instead, the authors show that, using an S-curve regression model, the most supportable hypothesis is that, despite short-term fluctuations, average tenure has been growing slowly and steadily over the long term, and we can expect more slow and steady growth in the future.

Supreme Court, life tenure, Justices

Abstract:
This Review Essay explores the new politics of judicial appointments by addressing the important question whether Senate-specific reforms to the judicial appointments process are likely to succeed. In his recent book, The Next Justice, Chris Eisgruber proposes a two-part plan to repair the Supreme Court appointments process. Like many other scholars that have written in the area, Eisgruber's reforms focus primarily on the Senate. First, he proposes that the Senate get smart by asking penetrating questions about the judicial philosophy of Supreme Court nominees in an effort to ensure that the future Justices are moderates, rather than extremists. Second, he proposes that the Senate get tough by standing up to the President and rejecting any nominee who does not prove to be moderate, or who fails to give satisfactory answers at the confirmation hearings.

In this Review Essay, the authors note several flaws in Eisgruber's proposals, many of which are applicable to other, similar reform proposals advanced by other scholars. First, Eisguber offers an incomplete diagnosis of the reasons behind the growing politicization of the appointments process, underestimating in particular the prominent role played by interest groups and the media in shaping the process. The political pressures on Senators make it unlikely that they can become tougher and more assertive in the process, either by adopting a more probing set of questions at confirmation hearings or by rejecting nominees in favor of judicial moderates.

Second, drawing on a rich political science literature, the authors demonstrate why a get tough strategy by the Senate in the judicial appointments process is likely to provoke a strong response from the President. Like many other scholars in the area, Eisgruber fails to address the myriad tools available to Presidents to deal with Senate resistance. The basic and most powerful tool for Presidents is the strategic selection of Supreme Court nominees, especially those with excellent qualifications, which can make it difficult for Senators to delay or reject those nominees. In the face of an obstructionist Senate, Presidents can also draw upon their substantial institutional strength by going public and touting the qualifications and attributes of the nominee, by making or threatening a recess appointment, and by employing ordinary legislative techniques like logrolling strategies and credible veto threats. Strategic employment of these tools makes it more difficult for Senators of all parties to obstruct Supreme Court nominees and helps to explain why the vast majority of such nominees during the past century have been confirmed by the Senate.

Judicial Appointments, Supreme Court, Justices, Veto Threats, Strategic Selection

Abstract:
In 2005, the Supreme Court in United States v. Booker rendered the United States Sentencing Guidelines advisory. Arriving after eighteen years of complex and mandatory sentencing rules, the decision initially was heralded as revolutionary, both by critics and defenders of the federal Guidelines. But subsequent reports by the Sentencing Commission have shown few signs of a Booker revolution, revealing surprisingly modest changes. The existing research on post-Booker sentencing is incomplete, however, because it has not examined the response of individual judges to the decision. That omission is critical, given that the reduction of inter-judge disparity was the central purpose of the Guidelines. Studying sentencing patterns by individual judges is notoriously difficult because the Commission does not disclose the identity of the sentencing judge when releasing case records. But one district court - the District of Massachusetts - has adopted a unique policy that makes key sentencing documents available to the public, allowing the analysis of judge-specific data.

This Article offers the first empirical evidence of individual judges’ responses to Booker, drawing on a dataset of sentences from 2002 to 2008 by judges in Boston who share a common case pool. An analysis of those sentences suggests a modest but clear increase in inter-judge disparity since Booker. The strength of the relationship between the identity of the sentencing judge and sentence length has increased, by some measures 60-80% above pre-Booker levels. The identity of the judge also has become a stronger predictor of sentencing relative to the Guidelines: some judges now sentence outside the guideline range more frequently, and to a greater extent, than their colleagues. Although it is difficult to know whether similar trends have played out in other districts, the Boston data suggest that judges’ disagreements about the Guidelines have a greater effect on sentencing outcomes since Booker.

sentencing, Booker, guidelines, disparity, Kimbrough, Gall