When a judge dies in office, there isn’t much to be done about who gets to select a new judge to fill their seat. But when a judge retires, as with a Supreme Court justice, or takes senior status as is more usual with district and circuit judges, political choices are made. Whether this was always the case or a more recent phenomenon is beyond my pay grade, but it’s surely the case now.
Indeed, the beloved Notorious RBG was castigated for not retiring during President Obama’s tenure so that her replacement upon her death was chosen by Darth Cheeto. Similarly, Justice Breyer was the target of extreme pressure to retire for the good of the team while Biden was president and the Dems held Congress so that his replacement would be chosen by a Democratic president and confirmed rather than Garlanded.
These political maneuvers, as well as the decisions by lower court judges to not take senior status until their replacement would be chosen by the right party, reflect broader political leanings, political party choices. Whether this is a matter of promoting a preferred judicial philosophy or simply a more empathetic judge varies, but it’s within a judge’s normal purview to choose the timing of their retirement and to do so with the judge’s purpose being to promote what the judge believes best.
But Judge Johnnie Rawlinson of the Ninth Circuit has taken this to the next level.
For more than 20 years, Judge Johnnie Rawlinson has served on the 9th Circuit Court of Appeals as not only the first but, for most of that time, also the only African American woman on that court. Now, the longtime judge says she may be ready to step back and take so-called senior status — but only if Nevada’s two U.S. senators back her preferred replacement.
Her pick: Berna Rhodes-Ford, a former clerk for Rawlinson, a lawyer for more than two decades — and the wife of Democratic Nevada Attorney General Aaron Ford.
Not just a party or philosophical choice, but a specific person, represents a significant shift in the paradigm of who chooses federal judges. The power belongs to the president, although the senators from the state where the district or circuit more or less resides proffer the name of their nominee to the president. There is a lot more wrapped up in this process, from blue slips to states where senators are from different parties, but that’s a matter for another day.
Here, Judge Rawlinson made an offer to open up a slot now with the proviso that it be filled by the person she chose rather than the senators or president.
“I could do this job for another 20 years without hardship, God willing,” Rawlinson, 69, said in an interview. “I don’t have any health issues, I don’t have any impediments to doing this job. But I am cognizant of the fact that the torch needs to be passed at some point, and I think this is the opportune time.”
As judges have lifetime tenure upon good behavior, there’s not much anyone can do to force Judge Rawlinson’s hand. No one can make her go senior. But if the senators and president acquiesce to her demand, have they given away their power to provide a name to the president for nomination? With this norm broken, will other judge similarly dictate their successors and strip the power from the executive branch to select federal judges?
The idea of judges picking their successors might conflict with norms and the constitutional authority of the president, but does that make it a bad idea otherwise? To a significant extent, judges are likely to have a better idea of who is qualified for the job and select a successor for less political reasons than senators or president. Of course, a circuit judge may not have a broader view of the profession so that trial lawyers are on their radar, but at least their choice might be less likely than the person who licked stamps long enough at the party headquarters.
Then again, there is nothing to stop a judge from selecting a crony, like a former law clerk, or to make a pick based on criteria such as race and gender. Some may be fine with it under conditions with which they approve, but would you really want Sam Alito picking his successor? If it works for one side, it works for the other.
Of course, there’s nothing about the current selection of judges that suggests it isn’t already as political as can be. Below the radar, there were some federal judges appointed by the former administration so lacking in qualifications as to be a joke. Have you ever tried a criminal case before a judge who had never been in a courtroom before and whose legal experience spanned almost decade? It’s not fun.
Perhaps the most significant shift would be that the shaping of the judiciary would come more from within than without. Senators and the president can select nominees based on their vision of what the judiciary should look like. It would have the potential to be forward looking so that they can affect change for the future. If current judges pick future judges, the choice could be backward looking, to keep the judiciary as it was, to replace the old judges with new judges who will serve as they did. To be fair, stability in the legal system is not, in general, a bad thing. Indeed, without stare decisis, the legal world would be chaos and we would never be certain whether our lawful actions today would be unlawful tomorrow.
Judge Rawlinson’s proposition may not be the worst thing that’s come out of the judiciary over the past few years, and may well be a pretty good thing. But it’s certainly a new thing, having judges offer to retire only upon nomination of the specific person they select. Should this wall be breached? It could change everything, and if it turns out not to be a better approach than what we do now, there may be no going back.
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