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Some federal judges plan to retire when Trump exits. Will Biden be able to replace them?

By Maura Dolan, Los Angeles Times on

Published in Political News

SAN FRANCISCO — For the last four years, some federal judges postponed retirement plans rather than give President Donald Trump the opportunity to name more conservatives to the nation's powerful appeals courts.

When Joe Biden assumes office, many of those judges are expected to step aside to allow the new Democratic president to appoint their successors, especially if Democrats regain the U.S. Senate.

The stakes are considerable, especially in the U.S. 9th Circuit Court of Appeals, which decides federal law for nine Western states. Trump's 10 appointments to the court, more than a third of its active judges, have moved the 9th Circuit to the right. Biden could tilt it back again if his appointments win confirmation, affecting decisions on immigration, the environment, criminal justice and other issues.

All eyes are now on nine active 9th Circuit judges appointed by President Clinton. They are in their 60s or 70s, and some have been waiting for a Democratic president so they can take senior status.

Senior status, given according to a formula based on age and length of service, allows qualified judges to earn their full salaries and work part time but limits their involvement in some of the most controversial cases. Once a judge "goes senior," in the parlance of the court, the president may appoint an active judge as a successor.

"I anticipate quite a few people doing things to enter senior status," said one of several 9th Circuit judges who predicted turnover.

 

The judge, however, added a caveat. "They might want to wait for a Democratic Senate, although I don't know whether that ever will happen."

That judge and others who spoke about possible turnover declined to be identified by name, saying they were unauthorized to speak for the court or their colleagues.

Whatever the judges' inclinations, the outlook for an exodus will depend on which party controls the Senate, said Erwin Chemerinsky, dean of UC Berkeley's law school.

"I have certainly heard from some of the Democratic appointees that they would be inclined to take senior status with Biden winning," he said. "But if the Republicans control the Senate, they will want to make sure that the Republican senators will confirm Biden nominees."

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