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Are Senior Judges Unconstitutional?:

This is the provocative question addressed by co-authors Professor David Stras (a colleague of mine at Minnesota) and Ryan Scott (a former student of mine, now clerking for Judge Michael McConnell). It is available here. While I'm not entirely on board for their analysis, attention should be paid to these two rising young stars of the legal academy, who've been specializing lately in institutional reform proposals for the federal courts.

Here's a summary from the authors:

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.

Sammy Finkelman (mail):
Well, I;ve always wondered about this - but I presume it could be Constitutional because they still retain their status as Federal judges. They are just semi-retired.

A judge whio just takes the cases he wants or as few cases as he wants is still a judge.

But this is a reminder that is is possible to change the terms of their service so that what you have now becomes unconstutional. If people forget the basis for someone;s office they can make mistakes like that.
3.6.2006 4:48pm
Kovarsky (mail):
Are the individual rules for senior sitting determined by circuit, or is there a national rule?

I know that some senior judges keep a full docket; some cut it in half; some cut it in 1/4. is that an election that happens pursuant to a national rule, or to a circuit rule?
3.6.2006 5:23pm
David Stras:
I would first like to thank Dale for posting the link and bringing attention to our article.

To answer your question, the workload requirements are found in the United States Code. When senior judges are not certified as meeting the workload requirements, they are denied the salary increases conferred by Congress on their judicial colleagues.

As for the rules for sitting, senior judges can only sit in their home circuits if the chief judge or judicial council of the circuit designate and assign them to sit. To sit outside the circuit, senior judges must be placed on the roster of senior judges kept by the Chief Justice, and designation and assignment has been denied by the CJ in the past, most notably in the case of Justice Charles Whittaker, who eventually fully retired from the judiciary in 1965.
3.6.2006 5:37pm
Attila (Pillage Idiot) (mail) (www):
I would have thought that district judges sitting by designation on a court of appeals represent more of a constitutional problem. They were never confirmed to an appellate position in the first place, and the qualifications (and I'm speaking generically here) are different for district and circuit judges.
3.7.2006 12:32pm
Howard257 (mail):
I'm not a lawyer, but if I recall correctly the Constitution vests judicial authority in a Supreme Court and such other courts as Congress shall establish. If that is the case, then it seems to me the authority to provide for senior judges clearly rests with Congress under that clause.
3.7.2006 7:28pm