Dem
51
GOP
49
It is well understood that no Supreme Court justice will retire anymore unless the current president is from the same party as the one who appointed him or her and the Senate is controlled by that party. Justice Clarence Thomas is 76 and would love to drive around the country in his quarter-million dollar luxurious custom bus and will probably be out of there in June 2025 if Donald Trump wins. If Kamala Harris wins, he will hang in there for another 4 years and if she is reelected, will likely die with his robe on. Unless he gets an illness so severe that he can't get out of bed, he is not going anywhere while a Democrat is president. To a slightly lesser extent, the same holds for Justice Samuel Alito (74). There is also Justice Sonia Sotomayor, who is 70 and has severe diabetes. She is betting that Harris will win or, if not, that she (Sotomayor) can outlive Father Time, just as Justice Ruth Bader Ginsburg did.
What is far less-well understood is that lower-court judges play the same game due to a bug in the Constitution. It says that all federal judges serve for life during good behavior. In retrospect, the Constitution should have said that they serve until they reach whatever retirement age Congress establishes by law. Ronald Reagan appointee Judge Pauline Newman is 97 and until recently was still hearing cases on the U.S. Court of Appeals for the Federal Circuit, even though her colleagues think she has long passed her use-by date. She's now been sanctioned by her fellow judges, but they have no way to get rid of her. She's not the only one who won't go gentle into that good night. The average age of a federal judge is now 69, up from about 50 in Thomas Jefferson's day and 57 in Abraham Lincoln's day.
Any U.S. district or appeals court judge who reaches 65 and has 15 years of service can choose to retire at full pay for life or take senior status. Senior status means a (greatly) reduced case load but still full pay. Taking senior status is voluntary. No judge can be forced to take it.
Currently there are 870 active federal judges on the Supreme Court, the 13 appeals courts, and the 94 district courts. Of those, 70 district judges and 34 appeals judges are eligible to retire or take senior status, but are not doing so, even though they get full pay for life if they do. Fourteen judges who are older than Joe Biden still have a full case load. This chart shows the 104 retirement-eligible judges by year of birth and party of the appointing president:
Of the 104 judges who could retire, 26 are Democratic appointees and 78 are Republican appointees (three times as many). What are the large group of Republican appointees waiting for? Guess:
The answer is not at the bottom of the page because we don't know, although we have a hunch given the partisan breakdown.
As a consequence of the backlog in retirements, the next president will probably get a fair number of judicial slots to fill—certainly if Trump wins and the Republicans control the Senate. If Harris wins and the Republicans control the Senate, it will get dicier and some elderly Republican judges may risk it, especially if they have really had enough and want to get on with their lives. That is a bit of a gamble because Sens. Lisa Murkowski (R-AK) and Susan Collins (R-ME) tend to believe that if a president makes a reasonable appointment, the president is entitled to get his or her way. If the Republicans control the Senate and Murkowski and Collins quietly tell Harris that they will vote to confirm any female judge she nominates, she will understand the message.
So far, the judiciary has not been a campaign issue, but it could easily become one. (V)