SAN FRANCISCO -- For the past four years, some federal judges postponed retirement plans rather than give President Donald Trump the opportunity to name more conservatives to the nation's powerful appeals courts.
When President-elect Joe Biden assumes office, many of those judges are expected to step aside to allow the Democrat to appoint their successors, especially if Democrats regain the U.S. Senate.
The stakes are considerable, especially on the U.S. 9th Circuit Court of Appeals, which decides federal law for nine Western states. Trump's 10 appointments to the court, more than a third of its active judges, have moved the 9th Circuit to the right. Biden could tilt it back again if his appointments win confirmation, affecting decisions on immigration, the environment, criminal justice and other issues.
All eyes are now on nine active 9th Circuit judges appointed by President Bill Clinton. They are in their 60s or 70s, and some have been waiting for a Democratic president so they can take senior status.
Senior status, given according to a formula based on age and length of service, allows qualified judges to earn their full salaries and work part time but limits their involvement in some of the most controversial cases. Once a judge "goes senior," in the parlance of the court, the president may appoint an active judge as a successor.
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"I anticipate quite a few people doing things to enter senior status," said one of several 9th Circuit judges who predicted turnover.
The judge, however, added a caveat. "They might want to wait for a Democratic Senate, although I don't know whether that ever will happen."
That judge and others who spoke about possible turnover declined to be identified by name, saying they were unauthorized to speak for the court or their colleagues.
Whatever the judges' inclinations, the outlook for an exodus will depend on which party controls the Senate, said Erwin Chemerinsky, dean of UC Berkeley's law school.
"I have certainly heard from some of the Democratic appointees that they would be inclined to take senior status with Biden winning," he said. "But if the Republicans control the Senate, they will want to make sure that the Republican senators will confirm Biden nominees."
If two Democratic Senate candidates in Georgia win runoff elections in January, the Democrats would have a majority with the assistance of Vice President-elect Kamala Harris.
Otherwise, the Republicans will continue to have the final say on judicial seats and could block any candidates deemed liberal, at least until the 2022 election.
"Everything about the judicial nomination process has become politicized in an unprecedented way," Chemerinsky said. "And it is hard to think about any of these questions except from the political perspective."
A 9th Circuit judge noted in an interview that "Clinton judges across the country have just been holding on" for a Democratic presidency. They should make taking senior status contingent on Senate confirmation of a successor if Sen. Mitch McConnell, R-Ky., remains majority leader, the jurist advised.
He expressed concern about McConnell "in light of his treatment of Merrick Garland's nomination, which I thought was a travesty." final sentence inserted; trim made to accommodate it; dooley(In his final year in office, President Barack Obama nominated Garland for the high court, but McConnell blocked even consideration of the judge.)