There's a movement brewing in the federal judiciary of long-serving judges deciding to take senior status, where they can remain on the court hearing cases with a reduced workload but—and this is the critical part—creating a vacancy for their seat. This is what Sen. Lindsey Graham was desperately trying to get judges to do last year in the hope that he and McConnell could jam more Trump judges into the federal judiciary.
He didn't get many takers, but since it became clear that Democrats would take the Senate, there's been a rush, by federal judiciary standards, anyway. Eight district court judges and one circuit court judge have decided to step back and create a vacancy for President Joe Biden this year. There are more than 100 more who would be eligible to step back and open up their seats. Eligibility for senior status is determined by the "Rule of 80": A judge who has reached age 65 and has served at least 15 years on the bench for a total of 80 years of service and age qualifies for senior status. The years of service required are reduced by one year for each year of age, with the two numbers having to total 80. So there's a big opportunity for diluting the effect of hundreds of Trump judges on the courts.
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There's also court expansion, which is desperately needed. The Judicial Conference of the United States, the national policymaking body for the federal courts, recommended in 2019 that Congress create “five permanent judgeships for the U.S. Court of Appeals for the Ninth Circuit (composed of California, eight other western states, and two U.S. territories). The Conference also recommends creating 65 permanent U.S. district court judgeships, as well as converting 8 temporary district court judgeships to permanent status." There hasn't been a major judgeship bill passed by Congress since 1990, and federal courts are overwhelmed.
There are a handful of vacancies for Biden: three circuit openings and 46 district openings. But even if all the eligible judges took senior status and Biden filled these seats, expansion is still necessary. It also has some powerful backers, including former Attorney General Eric Holder, who endorses it even for the Supreme Court. Senate Majority Leader Chuck Schumer told MSNBC's Rachel Maddow that "traditionally, we have increased the number in the lower end circuit courts," and that "we could expand those [district courts and circuit courts]."
That's not all that's going to be necessary to fix the mess McConnell and Trump have made of the federal judiciary. For example, the eventual new chair of the Judiciary Committee, Dick Durbin, is going to have to dispense with the nicety of "blue slips." That's the supposed courtesy extended to all senators that allows them to control the process of judicial nominations from their home states coming to the committee. Some chairs—Patrick Leahy was one—honored blue slips, though they are not written in stone. So if Republican senators refused to provide that go-ahead of the blue slip, the nominations were just stuck in limbo. That can't happen again. Not if the all these new vacancies and the potentially expanded courts are going to be filled with judges who will dilute the damage Trump's extremists will do for decades to come.
