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Judges Shouldn't Be Picking Their Successors

Last Thursday, FTC executive director Gabe Roth on Thursday wrote to the Director of the Administrative Office of the U.S. Courts and the chair of the judiciary’s Codes of Conduct Committee with a simple request:

Update the Code of Conduct for U.S. Judges to make it clear that a judge’s decision to condition his or her retirement or taking of senior status on the nomination of a specific successor is a violation of judicial ethics.

This is a problem that seems to be happening more and more. Why is it a problem? Because the Constitution is pretty clear on this: a president with the advice and consent of the Senate appoints federal judges. They don’t get to appoint one another.

And the idea that a judge would “unretire” because a president seeks to nominate someone who’s not the retiring judge’s favored option? That’s some really unbecoming behavior.

Read the full text of the letter below to see how we can fix it:

Dear Judges Mauskopf and Elrod,

It appears that over the last few years a number of federal judges have engaged in some unseemly behavior: namely conditioning their retirement or taking of senior status on the nomination of a specific successor. I urge you to do what you can to stop this.

Recent media reports suggest that this activity might be more prevalent than one might assume. For example, in 2018, Seventh Circuit Judge Michael Kanne conditioned his taking of senior status on the appointment of his former clerk, Indiana Solicitor General Tom Fisher. It appears that Fourth Circuit Judge Robert King rescinded his 2021 decision to take senior status due to his purported disapproval of whom the Biden administration wanted to name for the judgeship. And it’s been reported that this year E.D. Ky. Judge Karen Caldwell conditioned her taking of senior status on the appointment of former Kentucky Solicitor General Chad Meredith.

I can think of many reasons why a judge would go back on his or her decision to take senior status — maybe they believe they’d miss full-time work or their colleagues, or they’ve had a recent change in family situation that would make a full-time job more desirable. I can also think of many reasons why the White House, a U.S. senator or a federal judicial nominating commission might seek a judge’s input when looking to fill an actual or expected vacancy — maybe the judge worked with a potential nominee, or he or she practiced in said judge’s courtroom, and the powers that be want an honest assessment of skill and character.

But these examples are a far cry from what seems to actually be happening.

In fact, and I’m not the first to say this, I believe it’s unethical — that is, beyond the bounds of the Code of Conduct for U.S. Judges — for a judge to condition his or her retirement or taking of senior status on the appointment of a specific successor.

It is my hope that between now and the September meeting of the Judicial Conference the Codes of Conduct Committee will draft language for insertion into the Code that makes it clear that such activity is a violation of the Code — and that, to the extent you find it necessary, there might be a Published Advisory Opinion on the topic that goes more in depth.

Finally, it has come to my attention that there is a “suggestions box” on the U.S. Courts website, so feel free to post this email there if you like.

Thank you for your attention to this matter.

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