Talk:List of federal judges appointed by Donald Trump/Archive 2

Archive 1

Archive 2

Retired Supreme Court Justices

To the IP who has raised this issue, retired U.S. Supreme Court justices definitely may, and frequently do, serve by designation on lower courts after they retire from the Supreme Court. See Supreme Court of the United States#Retired justices. The governing statute is 28 U.S.C. § 294(a). I can cite dozens of examples if need be, including the fact that Justice David Souter, who retired from the Supreme Court in 2009, will be sitting on the U.S. Court of Appeals for the First Circuit and hearing cases next week (see here). Regards, Newyorkbrad (talk) 22:17, 30 January 2018 (UTC)

Supreme Court

Supreme Court Justices Don't Get Senior Status. Once a justice dies, retires or resigns from the Supreme Court, They're All Done.

Thank You! — Preceding unsigned comment added by 2601:401:C400:357:25F9:1235:3C49:DC69 (talk) 22:49, 30 January 2018 (UTC)

Please see the section just above. You are right that a retired Justice no longer serves on the Supreme Court itself, and you are also right that the term "senior status" is not usually used for Justices. However, retired Justices are statutorily eligible to serve by designation on lower federal courts and they frequently do so. Regards, Newyorkbrad (talk) 22:51, 30 January 2018 (UTC)

Yes, O'Connor did this, too, I think. --Coemgenus (talk) 12:21, 31 January 2018 (UTC)

Yes, retired Supreme Court Justices can serve by designation on any lower Article III Federal Court. Souter still actively serves, Stevens still hires a clerk but does not actively hear cases at this point and O'Connor has gone entirely inactive and no longer hires a clerk. Safiel (talk) 02:43, 1 February 2018 (UTC)

Supreme Court Justices and "Senior Status"

Okay, before I lose my mind and get into an editing war with other editors, there needs to be a consensus

I realize that once a Justice assumes senior status/retires (I'm using the terms interchangeably) that they no longer serve as an active member of the Supreme Court, however, they can sit by designation on any lower court, typically an appeals court. In the subsequent "Federal judges appointed by (insert president)" lists, do we list said "senior" Justices "end of senior status" dates if and when that happens or do we just stop at when their active service on SCOTUS ends? Currently FJC lists O'Connor, Souter and Stevens in senior status. The Supreme Court currently lists them as retired. I'm sure there have been others in the same term of service but in recent memory, I don't know.

Personally, I'm of the persuasion their term in senior status/retirment should be listed, if others disagree, that's fine, but they still are an active judge even if not part of SCOTUS, right?

Relevant text: (a) Any justice or judge of the United States appointed to hold office during good behavior may retire from the office after attaining the age and meeting the service requirements, whether continuous or otherwise, of subsection (c) and shall, during the remainder of his lifetime, receive an annuity equal to the salary he was receiving at the time he retired. (b) (1) Any justice or judge of the United States appointed to hold office during good behavior may retain the office but retire from regular active service after attaining the age and meeting the service requirements, whether continuous or otherwise, of subsection (c) of this section and shall, during the remainder of his or her lifetime, continue to receive the salary of the office if he or she meets the requirements of subsection (e).

Opinions? Snickers2686 (talk) 22:34, 5 February 2018 (UTC)

Paging JocularJellyfish (talk · contribs) JFG (talk · contribs) Safiel (talk · contribs) LacrimosaDiesIlla (talk · contribs) -- Feel free to add others to the discussion if you feel their insight would benefit the reaching of a consensus. Snickers2686 (talk) 22:52, 5 February 2018 (UTC)

@Snickers2686: Just saying your ping didn't work. For further clarity, I'm going to cite 28 U.S.C. § 371, which you already did above, but just to link people to the actual statute. It does say "justices" may retire on senior status and another justice may be appointed to replace them if that happens, which means that they are bona fide on senior status. I think that some of the confusion has occurred because the "retired" (still on senior status, just using the non-legal definition of the word) justices can no longer rule on pending supreme court cases even if there is a vacancy or recusal, and they can only serve on Article III district courts or courts of appeals. They're still on senior status, however, and for that reason I will Support keeping the additional column. – JocularJellyfish ^Talk_Contribs 22:49, 5 February 2018 (UTC)

@JocularJellyfish: I can't ever figure out the damn pings lol but thanks for your input Snickers2686 (talk) 22:52, 5 February 2018 (UTC)

For the record, let me point out that literally the only place that the word "senior" appears in the text of 28 U.S.C. § 371 it is part of the phrase "senior judges"; no reference to "senior justices" or even "senior status" for justices. How you've determined that the text of that section says "'justices' may retire on senior status" or that "they are bona fide on senior status" if another justice is appointed to replace them I don't know, but that just isn't what the text of the statute actually says. LacrimosaDiesIlla (talk) 04:36, 6 February 2018 (UTC)

@LacrimosaDiesIlla: It says any "judge or justice". – JocularJellyfish ^Talk_Contribs 10:42, 6 February 2018 (UTC)

@JocularJellyfish: So you concede the point that the text of 28 U.S.C. § 371 neither uses the term "senior justice" nor applies the term "senior status" to retired SCOTUS justices? Now to address what you said directly: what it says is "justice or judge" (not "judge or justice"), and the basic idea here is that "Any justice or judge . . . may retire" (on salary). That's the basic point here. Nowhere does the text of the law say "Any justice or judge . . . may take senior status". And more to the point, the phrase "justice or judge" appears TWENTY-ONE TIMES in this one little section of the code, but the one time the word "senior" is used is one of the few places where retired justices are not mentioned at all. That seems significant. No such thing as "senior justices". LacrimosaDiesIlla (talk) 14:43, 6 February 2018 (UTC)

@LacrimosaDiesIlla: I concede both points, but note that the word "senior" appears twice on the page: once in the section title and the other time is talking about the Judicial Conference, which I assume doesn't mention justices since there can only be so few justices who are on senior status compared to the hundreds of district and appellate court judges serving on senior status. The fact that subsection e) constantly alternates between "justice" and "judge" indicates to me that justices can take senior status (and actually do work) or retire as mentioned in previous subsections. – JocularJellyfish ^Talk_Contribs 18:39, 6 February 2018 (UTC)

@JocularJellyfish: It is neither your place nor mine (WP:OR) to speculate about why the law was written the way it was. The fact of the matter is that in the one place where "senior judges" are mentioned, there is no parallel mention of "senior justices" or even justices of any kind. The fact is that the word "justice" appears 25 times in this section, 21 of them followed by the words "or judge". The other four times are two places where a retired justice has to be certified by the Chief Justice in explicit parallel to retired judges being certified by chief judges. There are no stray references to "justices" that are not conjoined to references to "judges", and there is no "constant alternation" in subsection e) (or anywhere else) between "justice" and "judge". The term "justice" is always conjoined (by the word "or") to "judge" except in the two places mentioned previously where it is still in clear, explicit, and obvious parallel to something being said about "judges". In that context, the omission of the word "justice" from the one and only sentence that refers to "senior judges" cannot be ignored. As for the section title, it is unclear what exactly the term "senior status" is supposed to refer to within the section because the text never uses it. Obviously the references to justices in the section can be understood as falling under the "retirement on salary" part of the title. Also, you seem to think that "senior status" is somehow an alternative to "retirement": it is not. Senior status is a form of retirement. On the whole, I think your reading of the law is fairly question-begging; you're reading into the law what you want to find, rather than interpreting the law and reading it for what it says. LacrimosaDiesIlla (talk) 20:10, 6 February 2018 (UTC)

@LacrimosaDiesIlla: I don't think we're getting anywhere by being pedantic and arguing back and forth about this. As others have stated, this column won't be needed for another 14 years assuming that a consensus is even reached to place it there. I'm going to back out of this discussion now. – JocularJellyfish ^Talk_Contribs 20:47, 7 February 2018 (UTC)

Comment Since none of the other List of federal judges appointed by president pages see here here and here (these are the ones that have current retired justices) have a senior status box for a scotus judge and the scotus site lists them as retired there is no reason to change the status quo. Oppose. עם ישראל חי (talk) 22:54, 5 February 2018 (UTC)

@AmYisroelChai: Just because WP:OTHERSTUFFEXISTS (or doesn't, in this case) doesn't mean that valuable content can't be added to an article. – JocularJellyfish ^Talk_Contribs 23:00, 5 February 2018 (UTC)

That doesn't enter the equation when all the same pages for other presidents don't have that column makes it a good reason not to change the status quo because it proves the status quo is as it is for a long period of time longer than this page even exists. עם ישראל חי (talk) 23:07, 5 February 2018 (UTC)

@AmYisroelChai: Right now you are arguing that keeping the status quo is better than changing to the arguably "better" format. – JocularJellyfish ^Talk_Contribs 00:47, 6 February 2018 (UTC)

Support. The senior status option has only existed for Supreme Court justices since 1937. Since then, many have died on the bench, while some have resigned completely so they could return to private practice. It should not be too hard to add the column to all the relevant articles. bd2412 T 03:14, 6 February 2018 (UTC)

Oppose. I'll be honest I thought I was on your side, until you asked me to come and comment and I decided I needed to look into the issue carefully. The fact of the matter is that there is no such thing as "senior status" for Supreme Court Justices. None of the statutory text applies that language to Justices, and the fact, admitted above, that the Court itself only refers to them as "retired" should be a clue. It is not our place to apply terminology in novel ways. The terminology has a real-world, legal, defined-by-statute usage, and that terminology does not apply here, however much it might look like the same kind of thing that lower court judges are doing when they're on "senior status". The only relevant difference for Supreme Court judges is whether they "retire" or "resign". Retired justices may sit by designation, but they are not called "senior justices". Resigned justices would not be able to sit by designation. LacrimosaDiesIlla (talk) 04:08, 6 February 2018 (UTC)

I'm going to add pieces of evidence in favor of my position. First, 28 U.S.C. § 294. Section (a) discusses service by designation of retired SCOTUS Justices on lower courts, whereas (b) first defines the term "senior judge" to apply to those judges who have retired under the relevant conditions and then describes what judicial duties they may continue to undertake by designation. Real terminological difference between the two. LacrimosaDiesIlla (talk) 04:13, 6 February 2018 (UTC)

Our own article on senior status says that "senior status" isn't even in the body text of the USC, admits that "senior judge" is only applied to retired lower court judges, and goes on to explain that retired SCOTUS Justices are referred to as "retired justices" rather than "senior justices" both in the law and in court orders or opinions that they participate in. LacrimosaDiesIlla (talk) 04:17, 6 February 2018 (UTC)

Our article on Associate Justices also makes clear that SCOTUS justices who retire are not treated the same way as "senior judges". (I admit to having just deleted the words "in senior status" from that paragraph, but they introduced confusion at the point they were used, and the rest of the paragraph makes clear that retired AJs need to be understood differently from senior judges retired from the lower courts.) LacrimosaDiesIlla (talk) 04:27, 6 February 2018 (UTC)

Important points: (1) "Active" and "senior" are, by the terms of the USC, mutually exclusive: you're one or the other. (2) The relevant distinction, especially for SCOTUS Justices, is whether they "resigned" or "retired". The former involves giving up their commission (and their ability to sit even by designation), while the latter does not. (3) "Senior status" is not some kind of alternative to "retirement": it is a form of retirement. Judges who maintain a sufficient workload once they've retired get paid more; judges who don't get paid less. That's about it. LacrimosaDiesIlla (talk) 04:22, 6 February 2018 (UTC)

EVIDENCE AGAINST MY POSITION: On the other hand, while I stand by everything I've said above, I will admit that the FJC applies the term "senior status" to retired SCOTUS justices as here for David Souter. LacrimosaDiesIlla (talk) 04:48, 6 February 2018 (UTC)

Support I have examined the statutes. I have examined the FJC Bio entries of all Justices who's termination was post 1937. Whether you want to use the term senior status or retired justice, there clearly needs to be a column for termination of service. Some Justices terminated, such as Scalia, by death in active status. Some Justices, such as Fortas, terminated by resignation. Then there are the vast majority who achieved Rule of 80 and took retired status/senior status. Of those, (excepting, of course, the ones still alive), terminated retired status/senior status by way of death. Charles Evans Whitaker, the sole exception, terminated by way of resignation. Essentially, (and the statute corroborates my point of view), the retire OUT OF THEIR SEAT, but continue to HOLD THE OFFICE. Even if, as in the case of Sandra Day O'Connor, they are no longer exercising the office, they still hold the office. There absolutely should be a column indicated a termination date from senior status/retired status. Whether that column is titled Ended Senior Status or Ended Retired Status is debatable, but which ever way it is titled, it clearly should exist. Safiel (talk) 05:14, 6 February 2018 (UTC)

Perfect: you did the thing I was just about to do, which was look at the FJC bios for all post-1937 retiring justices. I accept your claim about what they say, but that only proves my point. Unlike lower court judges retired justices don't really have a way out of "senior service". FJC automatically describes every single SCOTUS retirement (as opposed to resignation, cf. Fortas) as assuming "senior service" and the only way out of this is by death (or in the one case resignation). Whereas lower court judges can actually exit senior status without resigning or dying (cf. Andre Davis for one recent example) and they can also retire directly without resigning or taking senior status (cf. Alex Kozinski for a recent example). Supreme court justices are treated differently from lower court judges, and they have different options. Neither law nor practice ever considers them to be "senior justices" so I don't think that adding a column here is meaningful or useful. LacrimosaDiesIlla (talk) 05:26, 6 February 2018 (UTC)

@LacrimosaDiesIlla: You say that all justices have to take senior status involuntarily per the FJC, but is that true? Could it be that no justice actually wants to retire (the legal definition of the word) because they take a pay cut and can also no longer hire a clerk? If anything, it doesn't look like a justice would formally retire unless they're joining another branch of government or are entering private practice. So maybe the fact that no justice likely wants to retire (as opposed to resigning in scandal like Fortas) explains why no one is actually listed as retiring post 1937. – JocularJellyfish ^Talk_Contribs 18:33, 6 February 2018 (UTC)

@JocularJellyfish: What I said was the FJC automatically described every single SCOTUS justice who retired as having taken "senior service". That strikes me as incredibly fishy. Is it possible that no SCOTUS justice since 1937 has tried to retire simply (bypassing "senior service") or has retired fully after having done "senior service"? Sure. But given how often lower court judges do one of those two things, it seems like more than a statistical anomaly that FJC gives us no such examples, especially if you consider that retired SCOTUS justices actually are in a position that is less like their pre-retirement one that retired lower-court judges, by which I mean that retired lower court-judges can continue sitting on the bench they have retired from, but retired SCOTUS justices cannot sit on the Supreme Court under any circumstances. Retired SCOTUS justices thus necessarily suffer a loss in prestige when they retire if they continue serving in anyway, whereas retired lower-court judges really don't. You also seem to misunderstand how retirement works: read the statute carefully. Any justice or judge who retires, having met the service requirements, continues to receive an annuity equal to their salary when they retired for the rest of their lives. There is no cut in pay for retiring, whether you ever do any more work in "senior status" or not. The only "cut" to speak of comes if the salary of your colleagues is increased after you retired, in which case you're stuck at the old salary rate unless you are engaged in a certifiedly adequate amount of service. If the justices simply didn't want to retire, they wouldn't retire; nobody can force them off the bench. Also, I note that O'Connor has not hired a clerk in several years and Stevens has not performed any judicial duties since retiring, yet they're both still listed uninterruptedly by FJC as being on "senior service": how does that make sense, either with your reading of the situation, or with the text of the statute in question? LacrimosaDiesIlla (talk) 20:22, 6 February 2018 (UTC)

@LacrimosaDiesIlla: I understand that by virtue of no longer sitting on SCOTUS, justices who have taken senior status are in a position of lower prestige. But as Safiel pointed out, they still wield considerable authority under 28 U.S.C. and Article III. When I stated that justices "take a pay cut" by retiring, I was referring to the fact that the justices would no longer receive yearly cost of living increases in pay. For example, if O'Connor actually retired back in 2006, she would be paid $52,300 less annually than if she took senior status. As for O'Connor and Stevens not hiring clerks, they likely took inactive senior status, as judge William J. Riley of the 8th Circuit did last year to continue receiving the pay increases but effectively be retired. – JocularJellyfish ^Talk_Contribs 20:43, 7 February 2018 (UTC)

I disagree with the proposition that a Justice can't "retire" completely. Arthur Goldberg resigned the court to become UN Ambassador, and then returned to private practice (including arguing a case before the Supreme Court). He could not conceivably have sat as a judge on a case in any court while engaging in any of those activities. bd2412 T 15:39, 9 February 2018 (UTC)

@BD2412: I'm confused. Do you agree with my argument or not? – JocularJellyfish ^Talk_Contribs 15:44, 9 February 2018 (UTC)

I agree that we should have a column listing any period of senior service during which a former justice would be eligible to sit on a lower court. I don't think that all justices who resign are automatically in that status. I think it is lost when a justice takes another position or returns to private practice in a way that makes it impossible as a practical matter to actually continue any service as a federal judge. I am reminded of the retirement of Paul Redmond Michel from the Federal Circuit; he retired from the court entirely, without taking senior status, in order to return to practice. There is nothing to prevent a Supreme Court justice from doing the same. bd2412 T 15:51, 9 February 2018 (UTC)

If you look on scotus' own site it just lists them as retired no mention of senior status. עם ישראל חי (talk) 15:15, 6 February 2018 (UTC)

Despite the one reference in the cited statute as well as the reference on the FJC database (likely drawn from that statute), the fact is that in practice, the term "senior status" is never used for retired Justices in everyday parlance. This includes in the front matter of the United States Reports, in listing the judges on a Court of Appeals panel when a retired Justice is sitting, and in myriad other contexts both official and unofficial. Therefore, the term "retired Justice" should be used throughout Wikipedia, although that in the specific article on retirement of Justices the parallel to senior status and the statutory language should be mentioned.

Interestingly, 28 U.S.C. § 294(a) provides that a retired Justice may be designated to perform the duties of a Circuit Justice. This would be a form of service as a member of the Supreme Court (as opposed to acting as a lower-court judge). However, to my knowledge this has never actually happened.

Justices "retire" as long as they have met the age-and-service requirements for doing so. Since the current statutory scheme was created, Justice Byrnes, Justice Goldberg, and Justice Fortas are the only ones I can think of who "resigned." Justice Whittaker had not met the length-of-service requirements, but retired on disability, the only Justice who has done that. Newyorkbrad (talk) 19:26, 6 February 2018 (UTC)

@Newyorkbrad: So do you support or oppose the inclusion of a column in the SCOTUS section of this article (and presumably related ones) to indicate the "senior service" of SCOTUS justices after retirement? LacrimosaDiesIlla (talk) 20:00, 6 February 2018 (UTC)

In principle, I favor inclusion of such a column in "Justices appointed by" articles, but headed "service as a retired Justice" rather than "senior service." However, frankly, I find it odd that we are having this heated a debate on this topic on this particular article, given that no Justice appointed by President Trump is going to be eligible for retirement for probably a couple of decades. It might make the most sense, for all the levels of judgeships, to omit the retired/senior status columns until at least one justice or judge retires and takes senior status, and add them them. At the moment it makes little different whether each of the charts has an extra column consisting entirely of a pile of dashes. Newyorkbrad (talk) 20:26, 6 February 2018 (UTC)

Comment there's a big difference between other federal courts and the scotus a scotus justice who retired may sit on a lower court for example a circuit court as we see here but not on the scotus itself while a federal judge taking senior status can sit on that same court as before he assumed senior status as we see in this case.עם ישראל חי (talk) 19:47, 6 February 2018 (UTC)

References

Comment Referring to NewYorkBrad's comment. Justice Gorsuch would not be eligible for senior status until August 29, 2032, when he will turn 65 years of age, have about 26 years of combined Article III service and satisfy the Rule of 80. And, most likely, barring any exceptional circumstances, he will serve at least 10 to 15 years beyond that date in active status. Some of the people who will be arguing this issue at that point aren't even born yet. We can safely omit the column as it relates to the Trump list, without conceding the underlying issue. Safiel (talk) 02:06, 7 February 2018 (UTC)

Comment Referring back to LacrimosaDiesIlla reply to me. Whether or not retired Supreme Court Justices can exit "retired Justice" status and truly TERMINATE their service is not really consequential. The fact is that while in retired Justice status, even if they are not actually exercising it, they still retain Article III Judicial power and that is a significant power and a significant status that should be acknowledged on the tables. While they know longer can take part in the business of the Supreme Court, they still can sit on any lower Article III Court and that is a very significant status with significant power. Safiel (talk) 02:06, 7 February 2018 (UTC)