In the federal judiciary, judges are appointed by two separate yet equally important branches: the president, who nominates and appoints judges, and the U.S. Senate, which confirms them. The partnership between the two changes over time depending on political circumstances. In unified government, the president is generally the senior partner, with the same-party Senate giving him a wide berth and confirming his nominees expeditiously. In divided government, the Senate has the incentive to assert itself and show the president as much or as little deference as it desires. Because of this, midterm elections are critical for judicial appointments because they can result in divided government and thus an empowered Senate.
We are currently in a midterm election year. It is likely that Senate Republicans will emerge next Congress with fewer seats than they currently have. It’s even possible that they will lose their majority to the Democrats. Either situation would impair judicial nominations as either a reduced majority empowers moderates to make the process more cumbersome or as the Democratic leader decides which judges get confirmed at all.
There are twenty Republican-appointed court of appeals judges who are eligible to retire (or, as in the convention, transition to “senior status” whereby they can maintain a full caseload) and who have yet not done so. The clock is ticking on this Congress where the Senate calendar indicates that any lower-court judge wishing to be replaced this year would need to signal his or her retirement by Memorial Day.
The fact is that only six circuit judges have elected senior status in the current Trump term: Sandra Ikuta (70), Diane Sykes (67), Jeff Sutton (65), Debra Livingston (66), Timothy Tymkovich (69), and Ralph Erickson (66). Interestingly, each of them did so at the height of his or her influence. Ikuta (though battling cancer) was among the seniormost conservatives on the influential Ninth Circuit. Sykes, Sutton, and Livingston were all chief judges when they announced their intentions to step down. Sykes and Tymkovich were on Trump Supreme Court lists in 2016. The Chief Justice reposed particular trust in Sykes, Sutton, Livingston, Tymkovich, and Erickson on administrative matters. It’s safe to say that Sutton is the most widely respected and influential circuit judge in the country.
Why did these judges, at the very top of their games, choose to step aside, while twenty others (all but two of whom are older) apparently will not? That’s a question whose answer probably depends on each individual judge. Assuming, however, that the judges taking senior status care about the future of constitutionalist jurisprudence, we can say that those who have done so made the correct decision, regardless of their intentions. To decide otherwise would leave their replacement to chance, which, if a judge cares about the judicial philosophy of his or her replacement, is unjustifiable.
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Federal judges enjoy life tenure. Under the Constitution they serve during good behavior, which has always been interpreted to mean that they serve until they either don’t want to serve anymore or they die. Bushrod Washington served for thirty-one years until his death in 1829. Joseph Story served for 33 years until his death in 1845. And, of course, Chief Justice John Marshall, the architect of the Court as we know it, served for thirty-four years until his death in 1835.
Marshall’s case is instructive because when he died, his replacement was selected by his nemesis, Andrew Jackson. That’s how Marshall, perhaps the last of the old Federalists, was replaced by a Democrat, Roger Taney. Taney would go on to author the infamous Dred Scott v. Sandford and help instigate the Civil War.
This is a dynamic that has persisted over time. Justice Hugo Black stayed on the Court long enough to be replaced by Richard Nixon. It was only Nixon’s resignation that prevented the arch-liberal William O. Douglas from sharing the same fate when his health forced him from the bench. Thurgood Marshall’s health forced his retirement and his replacement by Clarence Thomas, a fate his partner-in-arms William Brennan would have shared had George H. W. Bush replaced him with Edith Jones. (Instead, Bush went with the crypto-liberal David Souter in one of the great unforced errors of judicial politics.) Ruth Bader Ginsburg rebuffed suggestions that she step down under Barack Obama, only to be replaced by Amy Coney Barrett when she gave up the ghost, while Antonin Scalia’s death would have resulted in Justice Merrick Garland but for the heroics of Mitch McConnell.
On the other hand, Chief Justice Earl Warren tried his best to get out under Lyndon Johnson, only to have his efforts stymied by Johnson’s incompetence and Abe Fortas’s corruption. Democrat Byron White, although relatively conservative, believed you “leave with the fella that brung ya” and retired under Bill Clinton a decade before his eventual death. The reverse of that medal was John Paul Stevens, whose liberalism would not allow him to give his seat to the Republicans who had appointed him, and so he stepped down just in time for Barack Obama to replace him with Elena Kagan. Anthony Kennedy is still alive and well—occasionally donning his robes for the State of the Union—but he let Donald Trump replace him with Brett Kavanaugh, while the spry Stephen Breyer stepped down a few years later to be replaced by Ketanji Brown Jackson.
This has played out in the lower courts, too. Stephen Reinhardt, the most notorious left-winger in the federal judiciary, died in office at 87 and was replaced by Donald Trump. The conservative Michael Kanne soon evened the ledger when his seat went to Joe Biden following his death at 83. On the other hand, Carlos Bea turned his seat over to Donald Trump at 85 and has continued to make his mark on the Ninth Circuit alongside his replacement, Patrick Bumatay.
This means that judges and justices need to think in decades and not years when deciding whether to retire. If a judge wants a likeminded replacement, he needs a likeminded president and Senate to do the replacing. That circumstance may exist today, but will it exist in four years? What about in eight years?
In the twenty-eight years following Jimmy Carter, there were only eight with a Democratic president. In the eighteen years following George W. Bush, there have been only six with a Republican president, and since 2013, it’s been a coin-toss—you have basically even odds of landing on a Republican or Democratic administration picking any of those years at random out of a hat.
While who’s in charge in a given year may come down to chance, who’s in charge right now is a known fact. Because judges can choose to retire, they have complete control over the outcome in the moment. It’s the future contingencies of electoral politics that are up to the vagaries of chance. The choice, then, for judges who care about conservative jurisprudence, is whether to leave its continuation in their seats to chance.
The Wheel of Fortune
It turns out there is a wealth of sound thinking on this very question. Whether or not to trust chance—or “Fortune”—is one that animates Boethius’s sixth-century masterwork The Consolation of Philosophy.
In it, personified “Philosophy” rebukes the author, who has fallen from the heights of public life to a prison cell, awaiting his execution: “You think that Fortune has changed regarding you—but you’re wrong. These have always been her ways and nature. She indeed has remained constant toward you in her very changeability.” Inconstancy is Fortune’s nature, so why should one expect it to be or stay good?
In other words, if you trust Fortune you are going to deserve what’s coming to you. Philosophy continues, “[I]f she can’t be retained by your will and she makes people miserable when she flees, what is she except a sign of approaching calamity?” In the end, “Since you’ve given yourself to the rule of Fortune, you have to submit yourself to her ways.”
It’s better simply not to rely on Fortune at all. The spinning of Fortune’s wheel is morally indifferent, but the choice to play the game lies with the individual. Choosing to play requires you to accept the bad consequences that depend only on where the wheel stops.
Of course, Boethius didn’t just conjure this up himself; you see its roots in the Romans. Take the Stoic moralist, Seneca, who warned of fortune that “[s]omeone active on many fronts often submits to fortune, which is safest when rarely tested but kept always in mind and never reckoned reliable.”
In proper Stoic fashion, this recognizes that you don’t control what goes on around you, but only your thoughts and intentions. For example, he notes, “‘I will sail—absent some chance occurrence’ and ‘The deal will go my way—absent some obstacle.’” We can’t predict everything, but we can anticipate the predictable.
Seneca explains: “This is why we say that nothing unexpected happens to the wise; we exempt them from humanity’s common errors, not its misfortunes, and everything turns out, not as they wish, but as they expected—having expected above all else that something could oppose their plans.” But simply trusting to chance is untenable. “Fortune is holding games and scatters offices, riches, influence among the gathered mortals … no one—not even the one who comes away with some loot—finds a lasting joy in what they have grabbed. So all the shrewdest people leave the theater as soon as the gifts are spied, knowing that those trifles come at a heavy cost.” To Seneca, as to Boethius later, the only way to win with Fortune is not to play.
Judicial Roulette
A conservative judge who retires now denies Fortune the spin of her wheel. Of course, as Seneca observed, there are always outside forces you can’t control. Earl Warren couldn’t predict the Fortas debacle. A plane crash could kill four Republicans tomorrow and hand the Senate over to Chuck Schumer. While this may be “misfortune,” it is not “error” like trusting Chance in the essentials.
Staying on the bench invites Fortune to spin. Whether the justification is “I’m still in good health” or “my dad lived to be 95” or “J. D. Vance will win in 2028,” it is a choice based on some perceived probability. “It will probably turn out fine because I assess that the odds are in my favor.” Perhaps. It nevertheless depends on at least two factors beyond the control of any conservative judge: his or her continued health, and the electoral fortunes of the Republican Party.
Once a judge is relying on the odds, he has relinquished his agency over the decision. It is no longer a function of rational deliberation but a function of Fortune’s wheel, whose spin the judge has no choice but to accept. Surely, Ginsburg regretted the weight of all democracy pressing down on her daily pushup regimen—you could hear it in her supposed final words imploring the political branches to wait until someone other than Trump could replace her. But she chose to live under Fortune’s yoke, as will any conservatives who don’t retire this year.
Not so with Sykes, Sutton, Livingston, and Tymkovich. Whether they realized it or not, they undertook a rational choice to ensure a desirable outcome for conservative jurisprudence. They opted out of Fortune’s game.
This decision was better than the alternative for the country, but the decision was also better for the judges themselves. They will be confident in the knowledge that they chose rightly. They will be free of anxiety regarding midterm elections, or the presidency, or the relationship between their health and that of the republic. It’s why Seneca would call them “wise.”
Their colleagues have a little more than a month in which to emulate their wisdom.
