Clinton, Obama Circuit Judges Shun Retirement as Election Looms

Most Democratic-appointed appellate judges eligible for a form of semi-retirement are hanging onto their seats as the election year tests President Joe Biden’s goal of reshaping the federal circuit courts.

Only three of 17 judges who’ve been eligible in the past year have given Biden pathways to appoint their successors.

Judge James Wynn Jr., an appointee of President Barack Obama, announced plans this week to step down from the US Court of Appeals for the Fourth Circuit and take senior status, a form of semi-retirement.

He follows Judge Joseph Greenaway of the Third Circuit, who left the bench to join Arnold & Porter last year. And the First Circuit’s William Kayatta Jr. became eligible in 2023 and soon after announced plans to semi-retire in October of this year upon confirmation of his successor.

Russell Wheeler, a Brookings Institution fellow who studies judicial nominations, says the group of Democratic-appointed judges eligible for retirement have been so for a long time. “They know the score and they’re not rushing for the exit,” Wheeler said.

Biden needs more of the 14 judges appointed by fellow Democrats remaining to leave active status if he hopes to make more circuit appointments.

His total so far surpasses the first four-year tallies of Democrats Bill Clinton and Obama and Republican George W. Bush. But the pace of retirements and the lengthy timeline from vacancy to confirmation pose significant challenges to appointing more judges before his first term ends next January.

The Senate has confirmed 39 Biden circuit nominees in his first three years, including Justice Ketanji Brown Jackson, whom he appointed to the DC Circuit before elevating her to the US Supreme Court. Four are pending Senate action.

Senior status allows judges to vacate their seat and take a lighter caseload. To qualify, a judge needs to be at least 65, and their age plus years of judicial service must equal at least 80. The minimum number of years of service to qualify is 10.

Several of the judges who could take senior status have been eligible for more than a decade. Their reasons for not stepping back are often not public, but they can range from enjoyment of the job to the prestige of serving on a bench one step below the US Supreme Court.

And sometimes those judges change their mind. The Fourth Circuit’s Robert Bruce King, who’s served more than two decades in Virginia, announced senior status under Biden and later rescinded his plans without giving a reason.

Progressives are disappointed in the hesitance among the pool of Clinton and Obama-appointed judges.

Tristin Brown, policy and program director at People’s Parity Project, which advocates for a more diverse judiciary, said some judges may be paying attention “particularly to how slowly the White House and senators have moved with some high profile vacancies.”

Those judges should still “understand when it’s time for them to take a step back and step down to allow younger, brilliant legal minds the opportunity to elevate to these positions,” Brown added.

Lengthy Process

Even if those judges go senior in 2024, it takes a long time to fill a vacancy on an appellate court—from nominee selection to moving them through the Senate, which is narrowly controlled by Democrats.

Biden’s 12 circuit picks in red or purple states took 281 median days from vacancy to nomination, according to Wheeler. The 10 who were confirmed got through the Senate in 223 median days, or about twice as long as blue state nominees.

As Democratic senators face pressures to campaign in their home states this election year, fewer lawmakers will be present and the Senate could meet less frequently, cutting the amount of floor time to schedule votes on nominees. The time between a vote to invoke cloture, or end debate, on a circuit nominee and their confirmation vote is 30 hours. The Senate could alternatively confirm a number of nominees during the lame-duck session post-election.

“Even if the stars were to align and all who were eligible were to announce tomorrow, I don’t think there’s any way they could fill all of them,” said John P. Collins, a George Washington University Law School professor who tracks judicial nominations.

In addition to Wynn’s Fourth Circuit seat, Biden has two other vacancies, one created by Kayatta and another by the Sixth Circuit’s Julia Smith Gibbons in Tennessee, who was appointed by George W. Bush and will semi-retire on confirmation of a successor.

Senator Support

Current Senate practice doesn’t require that appellate nominees earn home-state senator support to move forward in the chamber. But Biden has worked to gain this approval from Republicans, helping to ease their vetting with often bipartisan support.

Biden could save time and “muscle through” nominations without home-state senator support, Wheeler said. But the stakes for not getting that approval are high, even if it would lengthen the process.

Tennessee GOP Sens. Marsha Blackburn and Bill Hagerty said they weren’t properly consulted before Biden nominated Andre Mathis to the Sixth Circuit in 2021, and both voted against his confirmation. It took roughly 10 months for Mathis to get a floor vote, and he was confirmed by a one-vote majority.

In comparison, Irma Carrillo Ramirez was confirmed as the first Latina to serve on the Fifth Circuit, 80-12, with the support of Republicans John Cornyn and Ted Cruz of Texas. She replaces Obama-appointee Gregg Costa, who left the bench in 2022.

Of the 14 Democratic-appointed appellate judges eligible for semi-retirement, three are in red states—those represented by two Republican senators—where Biden has gotten GOP home-state lawmaker support for other judicial nominees. Those states include Florida, Louisiana, and Utah.

There’s still a chance that goodwill among GOP lawmakers fades as the prospect of a Republican White House and Senate majority drives the year’s election politics, Collins said.

Two other judges are in states led by Republican senators who the White House hasn’t had luck with yet: Tennessee and Mississippi.

Additionally, Judge Robert Bruce King in West Virginia and Judge Karen Nelson Moore in Ohio are in purple states—those with one Democrat and one Republican in the Senate.

Five judges are in states led by two Democratic lawmakers. Two are on the Federal Circuit.

Proud of Progress

Donald Trump’s record 54 circuit confirmations has been a popular goal post to measure Biden’s progress.

And progressives who’ve encouraged Biden to fill as many vacancies as possible say it’s an important metric given the unprecedented nature of the accomplishment, assisted by Senate Democrats’ 2013 decision to reduce the vote threshold needed to advance a lower court nominee from 60 votes to a simple majority. Trump also inherited a large backlog of court vacancies after Republican blockades on Obama’s judicial nominations.

Progressives say they’re also proud of Biden’s record on expanding the professional and demographic diversity of the judiciary.

That includes Jackson, the first Black woman on the high court, and more judges with public defender experience appointed to circuit courts than any other president, according to the Senate Judiciary Committee.

“It was time that we had more public defenders and more labor lawyers and others on the courts,” said Caroline Fredrickson, former president of the American Constitution Society, who now teaches at Georgetown Law.