Court reformers usually focus their attention on expanding or imposing term limits on the Supreme Court, but recent events in the lower courts are making another kind of reform urgent—even inevitable. Judges have begun to leverage their retirements to make inappropriate demands of the executive branch. Congress or the courts have to put a stop to it.
Federal judges have long retired with no strings attached, but that tradition began to crack near the end of the Trump administration. In 2018, Judge Michael Kanne of the United States Court of Appeals for the Seventh Circuit startled the legal community by withdrawing his announced retirement out of pique that his former clerk wouldn’t be selected as his replacement.
Now, under the Biden administration, the dam seems about to burst. In just the past year, at least three federal judges have reportedly used their retirements to set up a quid pro quo. And still other examples are rumored. These jurists have used the carrot of a promised retirement, or the threat of rescinding a retirement already announced, to make demands of the president.
The most recent incident involves Judge David Hurd of the Northern District of New York. After he had announced his retirement and the president publicly nominated his successor, Hurd wrote to the president that his retirement plans were scotched. Why? Because the judge objected that his successor’s office would be located in Albany, New York, rather than Utica.
Behavior like Hurd’s must stop. Retiring judges have no authority to dictate policy either to their successors or to the president. But with politics so polarized, presidents have a powerful interest in filling seats with their preferred nominees. By taking advantage of that fact, Hurd and other judges are exercising authority far outside their jurisdiction.
The results are alarming. Hurd, though still a sitting federal judge, has now become enmeshed in politics. And his would-be successor, nominee Jorge Rodriguez, has seemingly been left high and dry. That result lays waste to work on the Rodriguez nomination, is personally unfair to the nominee, and will make it harder to entice qualified candidates to the bench.
Hurd’s example is bound to prompt additional manipulative retirements. The president and his allies reportedly tried to placate the judge by offering various promises about where Rodriguez, if he became a judge, would work. But the president has to be careful: if he offers too much to retiring judges, then even more judges will soon come calling, demands in hand.
Hurd’s stated reason for rescinding his decision has the appearance of being rooted in the public interest, or at least Utica’s. By contrast, other judges have recently tried to install their favorite clerks as their successors. But if demands like Hurd’s can prevail, then how many other quirky policies or personal favors could a retiring judge insist on? With little if anything to lose, federal judges are likely to push the envelope ever farther.
Rather than bow to Hurd’s edicts, the president should use this incident to push for change. One option is to hold the judge to his retirement announcement, thereby inviting clarifying litigation. There is an argument, for example, that a judicial retirement cannot be rescinded once a replacement has been named. Or the president could heed recent calls for an ethics rule or statute barring judges from reneging on, or bargaining over, their retirements.
Best of all, the president could use this case to promote court reform from the bottom up. Reforms that check flagrant abuses in the lower federal courts can help set the stage for reforms directed at the Supreme Court. If federal judges like Hurd were bound by their resignations, for instance, then justices of the Supreme Court could be as well.
And making the justices’ resignations binding would bring huge benefits. Not only would it prevent Hurd’s shenanigans from spreading to the highest court in the land, but it could also allow the justices to commit to retire after a fixed term of service. In other words, the justices themselves could create Supreme Court term limits. And doing so might prove attractive, especially if it helps to stave off more intrusive reforms, like court-packing.
The president is reluctant to move court reform to the top of his agenda. But escalating abuse by lower court judges may force his hand—and a good thing, too.