Federal Judges Shouldn’t Renege on Their Retirements

Should federal judges rescind their retirements in the wake of a presidential election? The question is posed by several federal judges who have recently done so.

The judges in question are Court of Appeals Judge James Wynn, as well as District Court Judges Max Cogburn and Algenon Marbley. Both Wynn and Cogburn were appointed to the federal bench by President Barack Obama and Marbley by President Bill Clinton.

All these judges announced their intention to become senior judges during President Joe Biden’s term. But then Donald Trump won the presidential election, and Biden failed to install the judges’ successors. With Trump suddenly poised to nominate their replacements, the judges purported to rescind their retirements. They now intend to remain in active service.

These actions call to mind the summer of 1968, when Chief Justice Earl Warren added to the hubbub of a presidential election year by announcing his own retirement. Warren knew that he was reaching an age when he would want to retire. He also expected—or hoped—that President Lyndon Johnson would appoint his successor. 

But Warren’s plan went wrong. After Johnson nominated Justice Abe Fortas to the Chief Justiceship, Fortas faced stiff political opposition that prevented his confirmation. Richard Nixon won the presidency that fall.

Warren could have tried to rescind his resignation. Yet he did not. Some historians suggest that Warren, long a target of political controversy, did not want to admit so bluntly that his retirement calculus was partisan. Or perhaps he felt that rescinding a retirement after an election would be worse than timing a retirement based on political prognostication. 

Either way, Warren stayed the course, and President Nixon nominated his successor, thereby inaugurating the Burger Court.

In the decades since Warren’s fateful decision, federal judges have largely followed his example. True, jurists have often become ill or passed away at politically inconvenient times. (Just think of Justices Antonin Scalia and Ruth Bader Ginsburg.) But many other judges have arranged their retirements so that a favored president would nominate their successor. This pattern is especially visible in the lower federal courts, where retirees can continue hearing cases as “senior” judges.

At the same time, federal judges generally have not rescinded their retirements based on disaffection for their potential replacements. The main exceptions occurred during the last several years, when a few judges attempted to influence the selection of their successors for idiosyncratic reasons, such as to favor their former clerks. In earlier eras, judges occasionally changed their minds about retiring for other reasons, such as new medical advice, and the Office of Legal Counsel has at least sometimes affirmed their power to do so.

Many observers have been untroubled by the prospect of federal judges rescinding their retirements after elections. If judges regularly initiate retirement with an eye to political considerations, is reneging on similar grounds really any worse?

Yet Chief Justice Warren drew a meaningful, principled line. Rescissions after election day are undeniably partisan. By abruptly changing course, reneging jurists effectively isolate politics as their reason for decision. In addition, decisions to renege follow initial retirement decisions that presumably had a sound foundation. A judge who admittedly had good reason to step down, such as because of declining health, should do so—politics notwithstanding. 

By comparison, decisions to initiate retirement generally are not so clearly political, and they do not raise the same worries regarding declining ability. For example, reporting indicates that Justice Anthony Kennedy stepped down during the first Trump presidency because of health concerns. In that respect, Kennedy followed the lead of Justice John Paul Stevens, who several years earlier had stepped down during President Obama’s tenure due to a decline in his own health. So, even if overall trends in partisan retirements are evident, the motivations behind a particular judge’s retirement decision are often more obscure or complex.

Retirement rescissions are also distinctive because they express a focused negative judgment regarding a presidential administration—even though they arise in the context of continued service as a jurist. This means that the recently reneging jurists may soon hear cases involving the very presidential administration that they have exhibited antipathy toward. 

Chief Justice William Rehnquist once argued that judges contemplating retirement may consider politics because retirements are not judicial actions. By comparison, rescinding a resignation could be viewed as a choice to hear cases and exert the judicial power—making both the reality and the appearance of non-partisanship more essential.

Critics of the federal courts may celebrate recent events. If federal judges are implicitly political, then what harm can come from explicitly revealing that fact? Yet there is a difference between allowing politics a limited, quiet role and trumpeting it both openly and notoriously. Federal judicial norms around retirement and nonpartisanship are changing—some might say deteriorating—and what practices remain are under intense pressure. A judiciary of openly partisan retirements would be ripe for still greater partisanship.

Even so, the courts’ critics have something right: even timing one’s retirement on political grounds is indeed in tension with the judicial role. And we are now entering a new, more troubling world of judicial politics. Ethical challenges are multiplying, longstanding norms are decaying, and political actors are eager to exploit even innocent lapses for their own purposes. These new challenges call for new rules capable of garnering bipartisan support.

A straightforward if incomplete solution would render judicial retirements binding and irrevocable. Yet that approach would still allow for dealmaking and partisan strategy around the initial decision to retire in the first place. And the regime would have to be entrenched in a way to prevent it from being waived away when politically convenient. Still, this kind of reform would be valuable and may be all that can realistically be achieved.

A grander reform would eliminate the ability to undertake politically timed retirements altogether. Judicial term limits would fit the bill, and I have argued that judicial retirements themselves might help. If judges committed to step down on a schedule and a statute rendered those commitments legally binding, judicial term limits would result—without having to undertake the onerous process of constitutional amendment.

Senators Thom Tillis and Mitch McConnell have suggested that ethics complaints be lodged against some or all recently reneging judges. But these judges’ behavior involved a gray area created by uncertain standards. Here and elsewhere, principles of judicial ethics are in flux, making it hard to assign blame to past actions. Disciplinary action against these jurists—or attempts by the new administration not to abide by their retirement rescissions—would inflame judicial politics.

Genuine reform must set aside the desire to punish or shame specific individuals. Only new rules can curb partisanship while instilling greater faith in the courts.

Cross-posted from Re's Judicata.