Judiciary

Why Do Federal Judges Retire? More Income Is Top Answer


A new study on why federal judges retire, resign or take senior status has its authors worried about an increasing judicial exodus in the coming decades.

Federal appeals judge Patrick Higginbotham opted for senior status over immediate retirement. But he acknowledged the financial allure of leaving the job during a panel presentation on the study results at the ABA Annual Meeting in Chicago on Sunday.

Higginbotham knows a retired judge who is averaging $1 million a year in income. Higginbotham isn’t seeing that kind of money working as a senior judge for the New Orleans-based 5th U.S. Circuit Court of Appeals. “This job is costing my family a lot of money,” he said. “It always has.”

Higginbotham noted that Congress has not increased judicial pay since 1991, a decision he calls “obscene.” Nor has Congress granted annual cost of living adjustments to judges.

Financial concerns were paramount for judges who retired after senior status, as well as for judges who retired directly from active service, according to the survey results presented on Sunday. “I wanted more income” was the most popular reason cited for retirement for both groups, followed by “I wanted new challenges.”

Many retiring judges are being lured to work in alternative dispute resolution, according to study author Gregory Ablavsky, a Ph.D. candidate at the University of Pennsylvania. Judges with experience in complex and patent litigation are in particular demand.

Federal judges can retire or take senior status, with the option of a reduced workload, if they satisfy the “rule of 80.” The requirement says they must be age 65 or older, and their combined age and years of experience must total 80. It is an attractive option because their pay remains the same, but their taxes fall because they don’t have to pay taxes for Social Security or Medicare.

Senior judges are critical to the federal judiciary, panelists said. U.S. District Judge Sarah Evans Barker of the Southern District of Indiana explained why. “Senior judges provide a huge dollop of the work that gets done,” she said. The study’s authors have quantified the impact. They calculate that 147 district court judgeships and 23 appellate judgeships would have to be created if there were no senior judges.

The other study authors are University of Pennsylvania law professor Stephen Burbank and Judge S. Jay Plager of the U.S. Court of Appeals for the Federal Circuit. The study is available at SSRN .

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