Why Federal Judges Are Leaving the Bench was originally published on Firsthand.
Becoming a judge is a momentous achievement for an attorney. Elevation to this important position, whether by election or appointment, is prestigious and represents a recognition of one’s reputation for fairness, ethical behavior, and understanding of the law.
For those judges who are appointed, the prospect of lifetime tenure is enviable, but perhaps also daunting and burdensome. In recent years, judges appointed on the federal level are leaving the bench and returning to the bar in greater numbers.
How Attorneys Become Judges
Judges come from diverse backgrounds and have varied levels of experience, though most are attorneys who spent many years honing their craft and establishing reputations as intelligent, fair-minded practitioners. Many make their way to the bench as government lawyers or prosecutors, as these public servants often “gain the best experience needed to become a judge.”[i]
Procedurally, judges ascend to the bench either by election or appointment. They are elected at some level of court in 39 states; in fact, even state supreme court judges are elected in 38 states (though sometimes in unopposed retention elections).[ii] Otherwise, members of the judiciary are appointed, which, at the state level, takes on several forms. In many states they are appointed by governors and serve life terms or until they reach a mandatory retirement age; in other states, while judges are initially appointed by the governor, they must be reselected in unopposed retention elections.[iii] State legislatures play a part in appointing judges or confirming those nominated by governors in 16 states.[iv]
On the national level, Article III of the U.S. Constitution governs the appointment and tenure of Supreme Court justices, federal circuit judges, and federal district judges. These “Article III judges” are nominated by the president and confirmed by the U.S. Senate, and enjoy lifetime appointments unless they are impeached and convicted by Congress for inappropriate acts or behavior,[v] or they decide to retire or resign.
How Many Vacancies on the Federal Bench?
The lifetime tenure aspect of being a federal judge sounds pretty good—guaranteed employment, government benefits and pension, decent pay, and generally a friendlier and more stable work schedule than many positions in the legal field. Yet, the incidence rate of federal judges retiring or resigning has increased.
Specifically, as of March 9th of the third year for each of the past six presidents and with roughly the same number of Article III judges—there were modest increases from 829 to 848 between Bill Clinton and George W. Bush and from 848 to 860 between George W. Bush and Barack Obama—since 1988, only Clinton appointed more judges (128) than Joe Biden has (116).[vi] By contrast, the numbers for the other presidents are: George H.W. Bush, 71; George W. Bush, 104; Obama, 72; and Donald Trump, 89.[vii]
Why So Many Vacancies?
Beyond the more obvious reasons for why vacancies arise—judges passing away or retiring due to age or poor health, or because they were impeached—there are several explanations for why federal judges are leaving the judiciary at a greater clip than in recent years and returning to private practice, including:
- They are under intense scrutiny. As officers of the highest courts in the country, they must comply with a unique standard of ethics and conduct—the Code of Conduct for United States Judges—and they are constantly under a microscope for how they act and rule on the bench and how they live their personal lives.
- Their positions have become too politicized. From 1789 to 2000, 97% of the federal judges approved by the Senate experienced no opposition.[viii] However, opposition to judicial nominees has grown lately (see Table B—Comparative Confirmation Rates in this Brookings Institution article) as tensions between political parties have increased and as parties have become bolder in wanting to exert their influence on what judges are nominated. Gregg Costa, formerly a judge for the U.S. Court of Appeals for the Fifth Circuit, resigned in August 2022 after 10 years in the federal judiciary for this reason.[ix]
- They return to private practice because of better pay. While federal judges can make a decent living—2023 salaries are $232,600 for district judges, $246,600 for circuit judges, $285,400 for Associate Justices of the U.S. Supreme Court, and $298,500 for the Chief Justice of the U.S. Supreme Court[x]—they pale in comparison to BigLaw. Current BigLaw salaries range from $215,000 for first-year associates to $415,000 for the most senior associates—not including bonuses that range from $15,000 to $105,000[xi]—and the average salary for BigLaw partners in 2021 was $1.12 million.[xii] This played a major role in why now-retired U.S. District Judge George Hazel left the bench for Gibson Dunn, where average profits per equity partner in 2021 were $4.4 million.[xiii]
- It’s difficult for younger appointees to satisfy the “Rule of 80.” This Rule refers to the age and service requirement that allows federal judges to (1) reduce their caseload by adopting “senior status” or (2) retire at their current salary if their age and years of judicial service total 80 years.[xiv] As such, judges appointed at younger ages must have lengthy tenures to hit senior status or get full retirement pay, and many simply aren’t willing to stay on the bench that long. As of last year, 80 federal judges over the last 50 years resigned from the bench before reaching the “Rule of 80,” and 61% of those—or 11% of all judges appointed—were under the age of 45 when they were appointed to the bench.[xv]
As these—and other—pressures continue to mount for federal judges, we likely will continue to see increasing numbers of them returning to private practice and a greater number of vacancies within the federal judiciary.
[i] Zippia. (2022, September 6). How Hard Is It to Become a Judge? https://www.zippia.com/answers/how-hard-is-it-to-become-a-judge/
[ii] Brennan Center for Justice. (2022, October 11). Judicial Selection: Significant Figures. https://www.brennancenter.org/our-work/research-reports/judicial-selection-significant-figures
[iii] Ibid.
[iv] Ibid.
[v] United States Courts. (n.d.). About Federal Judges. https://www.uscourts.gov/judges-judgeships/about-federal-judges
[vi] The Heritage Foundation. (n.d.). Judicial Appointment Tracker. https://www.heritage.org/judicialtracker
[vii] Ibid.
[viii] Ibid.
[ix] Alder, M. (2022, April 27). Resigning Fifth Circuit Judge Fears Politicization of Judiciary. Bloomberg Law. https://news.bloomberglaw.com/us-law-week/resigning-fifth-circuit-judge-fears-politicization-of-judiciary
[x] United States Courts. (n.d.). Judicial Compensation. https://www.uscourts.gov/judges-judgeships/judicial-compensation
[xi] Tribe, M. (2022, November 29). Cravath Rolls Out Associate Bonuses, Matching Last Year’s Scale. Bloomberg Law. https://news.bloomberglaw.com/business-and-practice/cravath-rolls-out-associate-bonuses-matching-last-years-scale
[xii] Maloney, A. (2022, October 18). After Partner Pay Climbed 15%, More Modest Comp Gains Are Expected This Year. Law.com. https://www.law.com/americanlawyer/2022/10/18/after-partner-pay-climbed-15-more-modest-comp-gains-are-expected-this-year/
[xiii] Greene, J. (2023, March 6). From bench to big law: Why Judge Hazel is the latest to hang up his robe. Reuters. https://www.reuters.com/legal/government/bench-big-law-why-judge-hazel-is-latest-hang-up-his-robe-2023-03-06/
[xiv] United States Courts. (n.d.). FAQs: Federal Judges. https://www.uscourts.gov/faqs-federal-judges
[xv] Voruganti, H. (2022, July 29). The Flipside of Youthful Appointments – Are Young Judges More Likely to Leave the Bench Early? The Vetting Room. https://vettingroom.org/2022/07/29/the-flipside-of-youthful-appointments/
