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Stephen Burbank, S. Jay Plager, & Greg Ablavsky, Leaving the Bench, 161 U. Pa. L. Rev. (forthcoming 2012).

Law review articles have both texts and subtexts, messages that come through loud and clear and more subtle hints and suggestions that lurk in the article’s structure or methodology or footnotes.  A recent paper by Stephen Burbank, S. Jay Plager, and Greg Ablavsky nicely illustrates the idea.  In Leaving the Bench, the three co-authors offer a careful assessment of the many factors that shape the decisions of federal judges to step down from their jobs as active members of the Article III judiciary.  In the text of the piece, the authors explore the consequences of various forms of judicial departure and make a persuasive case that the institutional judiciary depends heavily on the contributions of senior status judges.  In the subtext, the authors provide a subtle reminder that judicial behavior, like all human behavior, resists simplistic modeling and one-dimensional explanation.  The authors put the proposition this way:  sometimes the scholar must attend to the “messiness of lived experience” rather than the tidiness of an unduly parsimonious model.

Models have taught us a great deal about the way political scientists and economists think about the way judges decide cases.  Political scientists prize the large N study, with lots of data points to smooth out the rough edges of statistical inference.  Economists prize presumptions about self-interested behavior.  Voting by Supreme Court Justices and federal appellate court judges has attracted the eye of such scholars:  it occurs with numbing frequency, enabling the statistically-minded to assess the ideology of a judge or Justice by reference to the way she votes.  Datasets vary in usefulness; some sort cases by the presumed valence of the outcome (left or right) and then assess votes against the backdrop of those assumptions.  Others use the votes themselves as a measure of voting behavior.  For many, votes either reveal or confirm that ideology plays a role in judging, although the more sophisticated studies suggest that panel make-up and–wait for it–doctrine can also influence the exercise of the judicial franchise.

Some of these same assumptions about judicial behavior recently have been brought to bear on the study of the timing of judicial retirement.  These studies begin with the hunch that judges time their departure decisions with a view toward influencing the politics of their successors by taking senior status when a like-minded president has the power to appoint the replacement.

Enter Burbank, Plager, and Ablavsky to test this set of hypotheses.  Among its many virtues, the piece nicely combines quantitative and qualitative analysis.  We come away from the paper with a much richer understanding of the many different ways judges leave the bench: by retiring, resigning, and accepting senior status, each with a different set of pluses and minuses.  We hear what the judges themselves have said about leaving the bench:  the authors surveyed judges about the considerations that influenced their decisions.  We also gain some insight from the numbers themselves, which the authors present to fill out the portrait.

On a close assessment of judicial motivation, the authors do not find that the desire to influence the selection of a successor dominates all other considerations.  Indeed, they find instead that a complex mix of considerations shapes the decision.  For example, judges often take senior status to enable their court to gain another member and increase the judge power of the court.  The law creates incentives for senior judges to maintain at least a 25% caseload in order to preserve their eligibility for any future salary increases, so this strategy represents a net gain for the court when senior judges stay active.  In addition, judges act to gain a slightly more beneficial tax treatment (avoiding FICA tax on their salary, which otherwise remains the same) and to increase the amount of outside income they can earn (freed of congressionally imposed limitations on active judges).  Apart from the nuance that appears in this multi-methodological study, we learn important truths about the state of our federal judge corps:  the country has grown increasingly dependent on senior-status judges because there are not enough authorized active judgeships; as salaries have stagnated, we may be encouraging more judges to retire for simple financial reasons; and we need to provide appropriate chambers and support personnel to encourage senior status judges to maintain that arrangement and to resist the siren call of better paid work in the rent-a-judge sector.

To be sure, a self-interested judge may describe her decisions in public-regarding terms that seek to preserve her good opinion of herself.  Only three of the dozens of senior judges who responded to the survey identified political motivations as central to their decision.  Of course, it may be that one would find political machinations lurking behind reported desires to increase the court’s judge power. Other judges reported that they were influenced by the fact that service as a senior judge preserves their eligibility for future salary increases (which have failed to materialize).  The great value of the study lies in its demonstration that crass political and economic motivations do not best explain all the data. What’s more, it appears that many senior status judges work much longer hours than would be required to maintain their eligibility for future salary increases.  On the whole, then, concern for colleagues and a certain loyalty to the work of the institutional judiciary appears to shape judges’ conception of their role when leaving the bench.

Messy, to be sure. But it is an account that appears to capture the complexity of judicial behavior.

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Cite as: James E. Pfander, Why Judges Leave the Bench, JOTWELL (November 19, 2012) (reviewing Stephen Burbank, S. Jay Plager, & Greg Ablavsky, Leaving the Bench, 161 U. Pa. L. Rev. (forthcoming 2012)),