Federal Senior Judges Carry a Growing Workload
Nearly a quarter of all civil and criminal cases closed in the nation's federal district courts last year were handled by senior judges who had retired but decided to keep on working, according to a new study by Syracuse University's Transactional Record Access Clearinghouse (TRAC).
Moreover, the size of the workload carried by senior judges last year was almost twice what it was two decades ago. In 1996, senior judges "terminated" 41,323 cases, or 14 percent of all civil and criminal matters. By 2014, the counts had jumped to 79,121 cases, 24 percent of the total.
The TRAC study found that while there is considerable year-to-year fluctuation, senior judge activity is up by nearly every metric: their numbers overall, the percentage of the judicial workforce they comprise, and the average number of cases they are closing. In 1996, the 247 senior judges closed an average of 150 cases and made up 31 percent of all judges hearing cases. In 2014, there were 386 senior judges (38% of the total) who on average closed 205 cases during the year.
The core explanation for this change is simple: While the number of cases being funneled annually into the nation's district courts has been steadily growing, Congress has for many years been reluctant to support the additional "judgeships" that have been regularly recommended by Chief Justice John Roberts, and William Rehnquist before him. As far back as January 2003, Rehnquist cited "rising caseloads, too many judicial vacancies, and too few authorized judgeships" as problems facing the courts.
The result of this gridlock is that the role of the senior judges in the basic operation of the courts has grown considerably.
In another finding from the TRAC analysis, there is considerable variation in the utilization of senior judges among the nation's judicial districts. At the higher end, for example, there were 24 courts in which the senior judges processed more than a third of all the civil and criminal matters. The records also showed, however, there were 10 jurisdictions where senior judges dealt with 5 percent or less of the workload (see Table 3 below). This in large part reflects the fact that the number and percentage of senior judges serving in each district also varies considerably (see Table 4 below).
For court administrators, the growing role of senior judges is a nagging and well-recognized phenomenon. For example, David Sellers, a long-time public affairs person in the Administrative Office of the U.S. Courts, was recently asked whether the availability of senior judges had helped meet the challenge of the growing caseloads.
"Congress has not enacted an omnibus judgeship bill since 1990," Sellers observed. "Courts that need additional judgeships and/or suffer from long-term unfilled judicial vacancies particularly benefit from the contribution of senior judges."
The lingering nature of the concerns can be seen in the September 2013 testimony of Judge Timothy M. Tymkovich, chair of the Judicial Resources Committee of the Judicial Conference Committee. "To enable the Judiciary to continue serving litigants efficiently and effectively, the judicial work force must be expanded."
Thus the contribution of the growing number of senior judges in helping an over-burdened system achieve its core goals is a genuine bonanza. But their expanding role in the operation of the courts also highlights important questions and concerns, including whether growing politicization of the judicial confirmation process is affecting the basic operation of the federal courts. The basic nature of this continuing problem becomes clear when it is considered that while the Democrat controlled White House does the nominating, the Republican controlled Congress must approve those nominees. Congress also must approve new judgeships, and the funds needed to fill them.
Who Are the Senior Judges and What Do They Do?
Under current law, a 65-year old federal judge with 15 years of service has three basic options.
One possibility is to retire. When judges make this choice they are entitled to a lifetime pension matching the full-time salary at the point when they leave the bench.
A second option is to resign. In this case the generous pensions offered by the court system are no longer available, but the judges are free to begin new careers such as joining a law firm and representing clients in court.
The third and most popular choice is to retire but keep taking cases. It is this class of judges and their role in the courts that is the focus of this report and that we and the courts refer to as senior judges. This last alternative — as laid out by the law and court regulations and described in a law journal article by Frederic Block, senior judge in the Eastern District of New York — has several principal advantages.
In his March 2007 Cornell Law Review analysis, Judge Block emphasized how the senior status allowed a judge "to continue with the judge's coveted judicial career, the intellectual stimulation it affords, and the judge's commitment to public service." Also important, he said, was that without a loss in pay the senior judges were offered more control over "the quantity and quality of their work-worlds" as long as the judges continued to provide "substantial service."
Judge Block listed other advantages. Unlike retired judges who do not take cases and whose individual annuities are frozen at the time of their retirement, active senior judges are eligible for all the cost of living adjustments and salary increases that might occur in the years after they retire. Yet another benefit, he explained, is that Congress has provided that the salary of a senior judge "is not subject to deductions for FICA and Medicare taxes." While the normal demands of the federal tax law still apply, he said that some states, including New York, "exempt senior-status compensation from state and city income taxes."
In a recent interview, Joseph H. McKinley Jr., the chief judge in the Western District of Kentucky, commented on the financial advantage for one of his colleagues who was considering senior status. "Taking senior status meant $15,000 to $20,000 more in his pocket," he said.
In addition, senior judges also enjoy one significant non-monetary benefit: the provision of an office and staff where they can continue to play an important role in the life and culture of their community.
As explained above, senior judges — providing they meet the basic work requirement — can tailor their workloads in many different ways. Judge John L. Kane Jr. of Colorado, for example, said in a recent interview that he had opted to continue handling his full share of the criminal matters referred to the district, but only 50 percent of the civil cases that came up on his "wheel." Judge Kane added that while his status had allowed him to cut back on civil matters and not attend a large number of meetings that he found unnecessary, he had chosen to devote considerable time to assisting his court in handling selected administrative matters such as the coordination of the regulation of government surveillance.
On the other hand, in his Cornell Law Review article, Judge Block said that many of the senior judges in his district have chosen not to hear the large number of often repetitive pro se cases submitted by prisoners.
The court records show, however, that a significant number of senior judges end up with an even heavier workload than some of their not-yet-retired colleagues in the same district. In 2014, for example, Judge George P. Kazen of Southern District of Texas sentenced 3,626 defendants from 2010-2014, sixth most in the country regardless of status. He "retired" in 2009. For examples of other notable senior judges see Table 2.
Where Are the Senior Judges?
Because of the complex mix of many factors — including judge ages, years of service, and the character of district caseloads — the workloads that senior judges carry differ dramatically across judicial districts.
Ranking at the top in the 2014 list was the Western District of Kentucky, where three quarters (75.1%) of its civil closures and defendant sentencing were handled by senior judges. Other districts where senior judges played a significant role were Vermont (63.7% of closures), Washington East (52.8%) and Utah (50.8%).
In his interview with TRAC, Chief Judge McKinley of Western Kentucky was asked what it was like managing a court with such a large percentage of senior judges.
"Well, it's interesting to be the chief judge to three former chief judges in the same district," McKinley said, also noting that he was the only non-senior judge in his district for much of 2014. "That's just a little bit different, but we make it work."
Judge McKinley said that at national judicial conferences, concerns have been expressed "about the cost of providing space and staff to senior judges." But he said those comments were often followed by remarks from judges in other districts "who say the seniors are essential to the management of the district's caseload."
Meanwhile, at the opposite end of the spectrum, there are three courts where the senior judges played no role — Delaware, Wyoming, and North Dakota.
Part of the workload variations in the districts are, of course, driven by the actual availability of judges in each district who have chosen senior status. With the highest proportion of senior judges (67%), the Western District of Kentucky also ranked first in the proportion of the workload handled by senior judges (75.1%). And two of the three districts where senior judges played no role — Idaho and Wyoming — had no senior judges.
However, between these two extremes, given the varying workloads handled by each judge, some districts depended more heavily on their senior judges than their sheer numbers might suggest. For example, Vermont which ranked second in its reliance on senior judges, was ranked only 36th for its relative number of retired judges.
Figures on the number of judges in each district by their status during 2014 are shown in Table 4. When judges didn't serve the entire calendar year, counts were allocated based upon time spent. For example, because Kentucky West had two judges who did not clear their confirmation hearings, respectively, until December 5 and December 10 of 2014, their time was prorated to reflect the very small proportion of the year they actually served. A third judge in that district retired on April 1, 2014 so his time was allocated 0.25/0.75 between the regular versus senior status. Situations like this result in a judge "count" for a district with a decimal to reflect the proportion of time during calendar 2014 that they served in each status.
As suggested by Judge Tymkovich above, there is a potential cost in the nation's growing use of senior judges. How long will this unusual assemblage be able to provide the American people a fair and effective system of justice in the face of a political stalemate that now is preventing the regular judicial workforce from keeping up with its growing caseload?
 If a judge has not completed 15 years on the bench by age 65, as soon as the individual has at least 10 years of service and satisfies the Rule of Eighty (the sum of age plus years of service) they can retire.
 All retired judges who have not resigned their appointments — whether they take cases or not — are called senior judges. However, in this report, unless otherwise noted, a senior judge is a retired judge who is still taking cases.
 "Substantial service" is satisfied by performing the same or similar duties for the equivalent of three months per year. 28 USC Section 371(e)(1).
 Guam, Northern Mariana Islands, and the Virgin Islands were excluded from our analysis of the workloads of senior versus regular judges because these U.S. territories do not have Article III judges, senior or otherwise.