Judge’s Senior Status Reversal To Screw Joe Biden Just More Reason For Sweeping Judicial Reform

In the world of middle school civics, members of the federal judiciary enjoy lifetime tenure because it keeps judges pure from partisan squabbles and ensures that the judicial branch remains untouched by outside influence. It’s a stupid civic myth that — if it was ever true at all — came crumbling down as early as Marbury v. Madison. The Ur-Opinion of American jurisprudence stemmed from the fact that political parties immediately seized on the idea that lifetime appointments were patronage handouts to be packed with loyalists. How did the comforting fable of an independent judiciary survive the 220 years following John Adams’s furious midnight appointments?

But part of the deal was always that judges didn’t get a role in who gets to be a judge. Presidents get to nominate judges and the Senate acting as representatives of state legislatures (originally, anyway) get to advise and consent. It allowed the judiciary to act as a lagging indicator of the nation’s mood. Judges just get to judge and steer clear of all this.

Fast forward, and 81-year-old Fourth Circuit Judge Robert B. King just rescinded his own plan to take senior status after deciding that he didn’t want Joe Biden to pick his successor. Or, more accurately, Judge King didn’t want Joe Manchin to pick his successor.

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Judge King, a Bill Clinton appointee, likely embraced the election of Joe Biden for the opportunity to take senior status and open up a seat. But his enthusiasm seems to have waned over the last few months after Biden declined to nominate King’s former clerk — Frost Brown Todd partner Carte Goodwin — for the seat. David Lat covered the rumors about Judge King’s switcheroo, noting that Goodwin didn’t fit “the preferred profile of a judicial nominee in the Biden Administration.” That seems like a red meat herring for the anti-diversity crowd. Even if the administration is making it a priority to diversify the bench, it’s not like he’s exclusively picking women and minorities for judicial vacancies. The more telling observation also from Lat’s article is that Biden opted for a Joe Manchin loyalist over the judge’s former clerk and Judge King is apparently not a Manchin fan because the only bipartisanship in Washington right now is that literally no one likes Joe Manchin except coal lobbyists.

So an 81-year-old man is going to take his ball and bat and… go back to work. Hold the Fourth Circuit hostage out of spite because a president and a senator are horse-trading over budgets: a totally normal and not at all irresponsible power grab!

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It’s already becoming ridiculous that judges hold up their retirements over politics whether it’s RBG trying to hold out for another president or Kennedy only leaving when Trump promised to give Gropey McKegger his seat. Normalizing the idea that judges can change their minds if they don’t get to hand-pick their successor adds another lever to judicial power that the Framers would never have imagined. This isn’t the first time this has happened — as the article points out, Reagan-appointee Judge Michael Kanne of the Seventh Circuit did the same thing when Trump wouldn’t nominate his former clerk to fill his seat. He remains an active judge today.

While “judicial ethics” is becoming an oxymoron, if Judge King really is holding onto his job because he’s not happy with the nominee, isn’t this at least potentially a violation of Advisory Opinion 59, which states that judges “should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”? Judges refusing to carry through with senior status moves at least gives the appearance that the judge feels the selected replacement is unfit for the role.

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Not that this angle bothers me all that much. We just came out of an administration that made nominating unqualified jurists de rigueur so it’s difficult to work up a lather over a judge questioning whether the system is politicized.

The answer is to take the politics out of the process entirely. Preserve the lifetime job, but enforce senior status on judges after a certain interval. Use the same 18-year terms proposed for the Supreme Court such that every presidential term gets to put up an equal portion of federal judiciary. Senior status judges are important — they manage the day-to-day caseload — but the en banc panel could actually reflect the balance of the recent history of American elections.

And it would take away the power federal judges have over their own replacements. A power they were never supposed to have in the first place.

4th Circuit judge rescinds plan to take senior status [ABA Journal]
Judicial Notice (11.27.21): ‘The System Works’ [Original Jurisdiction]

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Topics

4th Circuit, Courts, Joe Biden, Robert B. King, Term Limits