Making Circuits Courts Appealing Again
January 5, 2018 in Economics
Ilya Shapiro and Aaron Barnes
Even beyond passing tax reform, slashing federal regulations,
and pruning the federal bureaucracy, Donald Trump’s most impressive
and lasting achievement so far is his record-setting pace of
judicial appointments to the U.S. courts of appeals. While the
Supreme Court gets attention for its blockbuster national cases,
the 13 federal circuit courts represent the end of the line for all
but 70 or so of the more than 50,000 cases they decide annually.
Judges sit on those appellate benches for life, affecting our law
long after the White House has changed hands.
After eclipsing the previous first-year records set by
Presidents Kennedy and Nixon with 12 appellate judges confirmed in
2017, what are the prospects for continuing this momentum and
increasing Trump’s judicial legacy?
Ultimately, the answer depends on two factors: (1) the number of
open seats to fill and (2) the power to get preferred nominees
confirmed. With regard to the latter, to paraphrase Yogi Berra,
making predictions about control of the Senate is hard,
particularly beyond this year’s elections. But engaging in a bit of
informed speculation as to the number of seats that will be
available for filling is less of a parlor game. The key
consideration in forecasting such vacancies — beyond the 17
that currently exist, for which six nominees are pending — is
the potential for judges to take advantage of what is known as
senior status. This status is governed by the so-called Rule of 80:
A federal judge who is at least 65 years old has the option of
going into semi-retirement once the judge’s combined age and years
on the bench add up to 80. So someone who was appointed before the
age of 50 (as most of Trump’s nominees have been) can go senior
immediately at 65.
The decision to take senior status has significant consequences.
Under it, a judge has the option of presiding over a reduced
caseload while maintaining his or her full salary. (In effect,
whatever work they do is voluntary at that point because they get
their full salary in retirement regardless, so we should be
grateful to them for picking up that slack.) For those who consider
interpreting the law and deciding cases to be a labor of love,
doing less work for the same pay can prove to be quite enticing.
Most relevant to a president wishing to leave a lasting mark on the
courts is that these senior judges don’t count against the 179
total appellate judgeships authorized by Congress. As soon as a
judge takes senior status, the president can nominate a new judge
to fill the newly vacant seat.
For …read more
Source: OP-EDS
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