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Newsletter
of the Federal Courts |
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Vol. 32
Number 7 July 2000 |
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Senior Judges Give New Meaning to ‘Volunteer’District Judge Joe Fisher, a judicial nominee of President Dwight D. Eisenhower to the U.S. District Court for the Eastern District of Texas, died last month. He’d served 41 years on the federal bench and up until two weeks before he died, he still carried nearly half the caseload of an active judge. He was 90 years old. Fisher was one of a cadre of judges across the country who, when they could opt for fishing trips and wintering in Florida or just plain doing nothing, continue to handle substantial court caseloads. It is fortunate for the Judiciary and taxpayers that they do. “Senior judges do approximately 15-17 percent of the work of the federal Judiciary,” said Administrative Office Director Leonidas Ralph Mecham. “In many circuits and districts, senior judges are indispensable to the proper conduct of judicial business.” In fact the federal Judiciary depends on its senior judges to such a degree that if tomorrow all the senior judges decided to catch up on their lost leisure, the courts would need an additional 100 active judges to compensate for the loss of the senior judges. If Congress and the President chose not to create the new judgeships, the federal courts would grind to a halt.
Judge Max Rosenn on the Third Circuit Court of Appeals has been a senior judge for nearly 20 years. And he says he has more work now as a senior judge than when he came on the court in 1970. “The courts run much more efficiently,” said Rosenn. “There’s better planning and accelerated production. With technology such as computers, we get out a whole lot more cases.” At 90 years of age, Rosenn takes pleasure in working. “I get a great deal of satisfaction in doing something useful,” he said. In 1999, 273 senior district judges terminated slightly over 17 percent of all civil and criminal defendant cases and conducted 19 percent of all trials. At the appellate level, 86 senior judges handled 15 percent of all participations in oral hearings and submissions on briefs. The contributions of senior judges have increased nearly every year. Judge Robert Sweet in the Southern District of New York carries a typical senior judge caseload. He cut his caseload by about a quarter when he took senior status. “Perhaps it’s a bit lighter than an active judge,” said Sweet, “but after 22 years of experience, I’m able to get a good grip on things relatively quickly and move the docket effectively.” Many senior judges, while they may have reduced caseloads, contribute substantially in other ways, some with their involvement in non-case related court matters and others by taking visiting judge assignments. In 1999, as visiting judges, 82 senior judges helped terminate 1,190 civil cases and cases involving 459 criminal defendants. In 1999, at the circuit level, 73 senior appeals court judges and 129 senior district court judges helped dispose of 3,269 cases.
Judge Milton Pollack, also a senior judge in the Southern District of New York, has served on the court 34 years and agrees with Sweet—experience counts. “I’m known for taking over long-delayed reassigned cases and telling the attorneys to come in next Monday and be ready for trial,” said Pollack, who likes to clear up civil cases, particularly securities and trust cases that have been pending for a lengthy period. “The lawyers tell me they need more time, but I tell them I really don’t have a lot of time at 93 ½ years old.” His philosophy is that the harder you work, the longer you live. “This business of golf or Florida vacations is for the birds,” says Pollack.
The rules didn’t always allow judges to work after retirement. It wasn’t until 1919 that legislation was enacted authorizing judges to retire at age 70 after 10 years of service, and continue to retain the judicial office and to perform duties in retired status. In 1948, Congress provided that judges retiring from active service would continue to receive the full judicial salary and in 1954, the retirement age became 65, with 15 years of service. Finally, in 1984, Congress established a sliding scale of age and service, commencing at age 65 with 15 years of service. Statistics show that very few federal judges—only about 1.6 percent—take full retirement before reaching 15 years of service in active status. Even fewer opt for full retirement instead of senior status when they are eligible. And a few judges, such as the late Judge Giles Rich of the Court of Appeals for the Federal Circuit, do not take senior status even when they’re eligible. Rich served over 40 years as an active judge becoming, at 95, the oldest active judge in history. Generally, however, slightly more than half of all federal judges take senior status within one month after becoming eligible. Seventy-five percent take senior status within a year. Slightly more than 8 percent delay the transition, working more than 20 years before taking senior status. At nearly 95, Judge Joseph P. Kinneary of the U.S. District Court for the Southern District of Ohio, is the oldest working senior judge in the country. He feels, however, the senior judge versus active judge designation is unfortunate. “Senior to what,” Kinneary asks, perhaps facetiously. “I think I’m about as active as you can be. And as far as handling a lawsuit, it doesn’t make a difference if I’m a so-called senior or a so-called active judge.” Kinneary takes a 100 percent draw on criminal cases and an 80 percent draw on civil cases. He takes the criminal cases because that’s what he likes to do. Times change, however, and he reflects that in the early days of his judgeship, the FBI frequently would bring interstate transportation cases before his court. Now, the majority of cases he sees involve drugs, or, on the civil side, controversies between big business interests. “Butthe nature of cases doesn’t make a difference,” Kinneary observes, “as long as you have good people on staff.”
At 80, Judge Anthony Alaimo (S. D. Ga.) feels there’s no difference between a senior judge and an active judge, except that in some courts, senior judges don’t retain their voting rights on administrative matters. He remains very active, last year handling a global settlement for about 900 plaintiffs in a class action suit. “I think I try more cases than some active judges,” he said. He admits sentencing is his least favorite duty, finding the U.S. Sentencing Guidelines too inflexible. Still, through choice, he carries a full caseload. “I’m like the old prize fighter,” Alaimo relates, “every time the bell rings I come out of my corner.” If a judge, at retirement age, chooses to take senior status, he or she receives the salary of the office including any subsequent cost- of-living increases. A senior judge must meet certain workload certification requirements to receive any salary increases other than cost-of-living adjustments and work may include judicial work outside of the courtroom. Since federal judges have received only two cost-of-living adjustments since 1993, and no other salary increases, senior judges obviously are not coming to work every day for the promise of a pay raise. They could just as easily stay home and receive their retirement pay. In effect, senior judges continue to do substantial work for no additional compensation. Judge Edwin F. Hunter (W.D. La.), who turned 89 last February, claims he’d be bored if he didn’t come to work. Judge Howard Turrentine (S.D. Calif.) jokes that he tried to stay home, but when he began suggesting housekeeping improvements, his wife convinced him to go back to work. In reality, the Southern District of California depends on its senior judges. The district is one of five southwest border courts that now handle 26 percent of all federal court criminal filings. “The Southern District of California has experienced a close to 60 percent increase in its caseload since 1995,” said Chief Judge Marilyn Huff (S.D. Calif.). “Until Congress approves a judgeship bill, we are relying on our five senior judges to get us through.” The Southern District of California is similar in that respect to many districts across the country where senior judges take up the workload created by lengthening judicial vacancies. They may have acquired the title of senior judge, but the need for their services remains the same as when they were active. Turrentine, on one typical Monday morning, had six sentencings and three supervised release hearings. In a court that he says is “overburdened” with immigration and drug cases, he does everything an active judge would do. Senior Judge Jack Weinstein (E.D. NY) took senior status to allow his court to bring on an additional active judge. “With our heavy workload,” said Weinstein, “we needed another judge.” The 79-year old Weinstein continues to carry a full caseload of civil and criminal cases. Several years ago, he briefly stopped taking drug cases until there was what he calls “a more sensible enforcement policy on the guidelines” on the part of the U.S. Attorney’s office. Weinstein also participates in the day-to-day administration of the court and he sits on the occasional appeal in the Second Circuit. What it may come down to, in the words of Judge Sweet, is that senior judges use whatever skills they have, where they are most needed. Taking senior status also gives judges some flexibility, which may lead, at least in Sweet’s case, to the opportunity to take a “busman’s holiday.” Sweet now has the time to respond to invitations to visit China and speak to judges and students there about the U.S. judicial system. In September he’ll visit Albania to lecture on the federal Judiciary. Says Sweet, “Given the fact that federal judges at retirement have the option to do nothing, senior judges are a boon to the system. And being a senior judge is the most desirable job in the United States.” Adds Mecham, “How many em-ployees would choose to come to work only to wrestle with difficult complex legal issues when they could instead get paid the same amount by staying at home? Senior judges are among the most unique public servants in the world. They give a new meaning to the word volunteer.”
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