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With the filibuster dead for most executive appointments, Senate Majority Leader Harry Reid has stepped on the gas for judicial appointments this spring. As of May 2, the body had confirmed four circuit court judges and 24 district court judges in 2014 – a veritable consentapalooza.
But for all the progress on nominations, the character of the federal bench is changing more slowly than it appears on the surface. This is because many judges who retire from their court don’t fully step down. Rather, when they take senior status, they still hear some cases.
How big of a stamp can these semi-retired judges make? Sometimes a profound one, depending how the draw affects the composition of a three-judge panel at the circuit court level -- one step below the Supreme Court.
Take for example the recent infamous case Hobby Lobby vs. Sebelius currently before the Supreme Court – in which a corporation claims to have religious rights to evade the contraception mandate in the Affordable Care Act. The opinion at DC Circuit was authored by noted fire-breathing conservative circuit justice Janice Rodgers Brown. However, the other judge that joined the opinion was A. Raymond Randolph – a George H.W. Bush appointee who took senior status in 2008. (For that matter, the dissenting justice was Harry Edwards, a Carter appointee who took senior status in 2005)
Semi-active senior judges also boast impressive numbers.
However, there are 91 active judges with senior status – 55 appointed by Republican presidents and 36 by Democrats. Throwing them into the mix leaves us with 129 Republican appointees and 116 appointed by Democrats – quite a shift.
This comparison is a bit misleading – most of those senior judges don’t hear as many cases so the GOP advantage is overstated considerably. (Senior judges hear about 15 percent of all cases across the court system.) Nor do senior-status judges sit on en-banc cases at the appellate level in which the entire court hears a case and often overturns the decision of a smaller three-judge panel.
However, the presence of senior judges is currently working to slow the pace of progressive judicial decisions, which is all the more reason to keep aggressively confirming judges.