Nearly a quarter of all civil and criminal cases closed in the nation's federal district courts last year were handled by senior judges who had retired but decided to keep on working, according to a new study by Syracuse University's Transactional Record Access Clearinghouse (TRAC).

Moreover, the size of the workload carried by senior judges last year was almost twice what it was two decades ago. In 1996, senior judges "terminated" 41,323 cases, or 14 percent of all civil and criminal matters. By 2014, the counts had jumped to 79,121 cases, 24 percent of the total.

The TRAC study found that while there is considerable year-to-year fluctuation, senior judge activity is up by nearly every metric: their numbers overall, the percentage of the judicial workforce they comprise, and the average number of cases they are closing. In 1996, the 247 senior judges closed an average of 150 cases and made up 31 percent of all judges hearing cases. In 2014, there were 386 senior judges (38% of the total) who on average closed 205 cases during the year.

Table 1. Trends in U.S. District Court Workload and the
Number of Regular and Senior Judges, 1996 - 2014
(Scroll right to see all years, click table title to open in a new window)

	1996	1997	1998	1999	2000	2001	2002	2003	2004	2005	2006	2007	2008	2009	2010	2011	2012	2013	2014
Total Civil and Criminal Defendants Terminated*	284,021	289,431	302,840	316,882	308,543	296,809	297,066	318,344	302,607	336,936	327,677	313,773	242,245	267,087	365,736	372,030	357,261	318,930	317,938
Terminated by Senior Judges*	41,323	48,543	51,646	54,498	55,913	52,401	53,115	56,574	52,433	55,444	55,604	57,257	54,136	56,755	63,710	68,647	69,716	70,531	79,121
Percent Terminated by Senior Judges*	14.5%	16.8%	17.1%	17.2%	18.1%	17.7%	17.9%	17.8%	17.3%	16.5%	17.0%	18.2%	22.3%	21.2%	17.4%	18.5%	19.5%	22.1%	24.9%

Authorized Judgeships**	647	647	646	646	655	665	665	680	679	678	678	678	678	678	678	677	677	677	677
Vacancies**	44	69	55	38	43	75	50	29	16	36	33	31	27	75	88	67	66	75	50
Regular Judges***	603	578	591	608	612	590	615	651	663	642	645	647	651	603	590	610	611	602	627
Senior Judges (authorized for staff)**	274	278	276	273	274	281	278	287	294	300	311	310	324	347	356	341	354	346	386
Percent of Judges who are senior***	31.2%	32.5%	31.8%	31.0%	30.9%	32.3%	31.1%	30.6%	30.7%	31.8%	32.5%	32.4%	33.2%	36.5%	37.6%	35.9%	36.7%	36.5%	38.1%

Average Terminated by all Judges***	324	338	349	360	348	341	333	339	316	358	343	328	248	281	387	391	370	336	314
Average Terminated by Regular Judges***	402	417	425	432	413	414	397	402	377	438	422	396	289	349	512	497	471	413	381
Average Terminated by Senior Judges***	151	175	187	200	204	186	191	197	178	185	179	185	167	164	179	201	197	204	205

* Figures provided to TRAC by the Administrative Office of the U.S. Courts from Judge Activity and Senior Judge Activity reports for years ending June 30.
** From Table 11 (previously Table 12) in "Judicial Business of the United States Courts," an annual publication of the Administrative Office of the U.S. Courts available at: http://www.uscourts.gov/statistics-reports/analysis-reports/judicial-business-united-states-courts. Data are as of September 30.
*** Computed by TRAC from the two sources above.

The core explanation for this change is simple: While the number of cases being funneled annually into the nation's district courts has been steadily growing, Congress has for many years been reluctant to support the additional "judgeships" that have been regularly recommended by Chief Justice John Roberts, and William Rehnquist before him. As far back as January 2003, Rehnquist cited "rising caseloads, too many judicial vacancies, and too few authorized judgeships" as problems facing the courts.

The result of this gridlock is that the role of the senior judges in the basic operation of the courts has grown considerably.

In another finding from the TRAC analysis, there is considerable variation in the utilization of senior judges among the nation's judicial districts. At the higher end, for example, there were 24 courts in which the senior judges processed more than a third of all the civil and criminal matters. The records also showed, however, there were 10 jurisdictions where senior judges dealt with 5 percent or less of the workload (see Table 3 below). This in large part reflects the fact that the number and percentage of senior judges serving in each district also varies considerably (see Table 4 below).

For court administrators, the growing role of senior judges is a nagging and well-recognized phenomenon. For example, David Sellers, a long-time public affairs person in the Administrative Office of the U.S. Courts, was recently asked whether the availability of senior judges had helped meet the challenge of the growing caseloads.

"Congress has not enacted an omnibus judgeship bill since 1990," Sellers observed. "Courts that need additional judgeships and/or suffer from long-term unfilled judicial vacancies particularly benefit from the contribution of senior judges."

The lingering nature of the concerns can be seen in the September 2013 testimony of Judge Timothy M. Tymkovich, chair of the Judicial Resources Committee of the Judicial Conference Committee. "To enable the Judiciary to continue serving litigants efficiently and effectively, the judicial work force must be expanded."

Thus the contribution of the growing number of senior judges in helping an over-burdened system achieve its core goals is a genuine bonanza. But their expanding role in the operation of the courts also highlights important questions and concerns, including whether growing politicization of the judicial confirmation process is affecting the basic operation of the federal courts. The basic nature of this continuing problem becomes clear when it is considered that while the Democrat controlled White House does the nominating, the Republican controlled Congress must approve those nominees. Congress also must approve new judgeships, and the funds needed to fill them.

Under current law, a 65-year old federal judge with 15 years of service has three basic options[1].

One possibility is to retire. When judges make this choice they are entitled to a lifetime pension matching the full-time salary at the point when they leave the bench.

A second option is to resign. In this case the generous pensions offered by the court system are no longer available, but the judges are free to begin new careers such as joining a law firm and representing clients in court.

The third and most popular choice is to retire but keep taking cases. It is this class of judges and their role in the courts that is the focus of this report and that we and the courts refer to as senior judges[2]. This last alternative — as laid out by the law and court regulations and described in a law journal article by Frederic Block, senior judge in the Eastern District of New York — has several principal advantages.

In his March 2007 Cornell Law Review analysis, Judge Block emphasized how the senior status allowed a judge "to continue with the judge's coveted judicial career, the intellectual stimulation it affords, and the judge's commitment to public service." Also important, he said, was that without a loss in pay the senior judges were offered more control over "the quantity and quality of their work-worlds" as long as the judges continued to provide "substantial service[3]."

Judge Block listed other advantages. Unlike retired judges who do not take cases and whose individual annuities are frozen at the time of their retirement, active senior judges are eligible for all the cost of living adjustments and salary increases that might occur in the years after they retire. Yet another benefit, he explained, is that Congress has provided that the salary of a senior judge "is not subject to deductions for FICA and Medicare taxes." While the normal demands of the federal tax law still apply, he said that some states, including New York, "exempt senior-status compensation from state and city income taxes."

In a recent interview, Joseph H. McKinley Jr., the chief judge in the Western District of Kentucky, commented on the financial advantage for one of his colleagues who was considering senior status. "Taking senior status meant $15,000 to $20,000 more in his pocket," he said.

In addition, senior judges also enjoy one significant non-monetary benefit: the provision of an office and staff where they can continue to play an important role in the life and culture of their community.

As explained above, senior judges — providing they meet the basic work requirement — can tailor their workloads in many different ways. Judge John L. Kane Jr. of Colorado, for example, said in a recent interview that he had opted to continue handling his full share of the criminal matters referred to the district, but only 50 percent of the civil cases that came up on his "wheel." Judge Kane added that while his status had allowed him to cut back on civil matters and not attend a large number of meetings that he found unnecessary, he had chosen to devote considerable time to assisting his court in handling selected administrative matters such as the coordination of the regulation of government surveillance.

On the other hand, in his Cornell Law Review article, Judge Block said that many of the senior judges in his district have chosen not to hear the large number of often repetitive pro se cases submitted by prisoners.

The court records show, however, that a significant number of senior judges end up with an even heavier workload than some of their not-yet-retired colleagues in the same district. In 2014, for example, Judge George P. Kazen of Southern District of Texas sentenced 3,626 defendants from 2010-2014, sixth most in the country regardless of status. He "retired" in 2009. For examples of other notable senior judges see Table 2.

Table 2. Some Notable Senior Court Judges

Judge	District	Date Commissioned	Date Retired*	Year Born	Note
Edward J. McManus	Iowa North	July 1962	Feb. 1985	1920	McManus is the longest serving federal district court judge, as well as the judge (among those that still take cases) that has served the longest since �retirement.� McManus closed 77 civil cases in 2014.
William J. Nealon Jr.	Penn Middle	March 1963	Jan. 1989	1923	Nealon hasn't served quite as long as McManus, but the senior court judge has been around long enough that he now hears cases in a courthouse that bears his name and that is also located in the city of his birth, Scranton, PA. He closed 147 civil cases last year.
Ellen Bree Burns	Conn	May 1978	Sept. 1992	1923	Burns was the longest serving woman judge until she stepped down from the bench at the end of March 2015. Serving as a senior judge since 1992, she sentenced dozens of defendants last year.
Eduardo C. Robreno	Penn East	June 1992	Aug. 2013	1945	Robreno closed 1,149 civil cases in 2014, most among senior judges and fifth overall regardless of status. Robreno is responsible for handling an enormous multidistrict ligation related to asbestos products liability, and has closed more than 190,000 cases related to that MDL.
George P. Kazen	Texas South	May 1979	May 2009	1940	Most people sentenced for the 2010-2014 period among senior judges with 2,916. That is the sixth highest overall regardless of status.
David Briones	Texas West	Oct. 1994	Feb. 2009	1943	Most people sentenced in 2014 among senior judges with 453.

* The date the judge took senior status.

Because of the complex mix of many factors — including judge ages, years of service, and the character of district caseloads — the workloads that senior judges carry differ dramatically across judicial districts.

Ranking at the top in the 2014 list was the Western District of Kentucky, where three quarters (75.1%) of its civil closures and defendant sentencing were handled by senior judges. Other districts where senior judges played a significant role were Vermont (63.7% of closures), Washington East (52.8%) and Utah (50.8%).

Table 3. Workload Handled by Regular vs. Senior Judges, by District, 2014*
(Click column header to sort, click table title to open in new window)

District	Workload by Judge Status			Percent Senior	Rank
District	Regular	Senior	Total	Percent Senior	Rank
Ken, W	345	1,040	1,385	75.1%	1
Vermont	143	251	394	63.7%	2
Wash, E	469	524	993	52.8%	3
Utah	642	663	1,305	50.8%	4
Penn, E	4,916	4,896	9,812	49.9%	5
Maine	362	355	717	49.5%	6
Ala, M	627	598	1,225	48.8%	7
Kansas	1,008	948	1,956	48.5%	8
Mo, W	1,454	1,207	2,661	45.4%	9
N. Y., N	1,138	914	2,052	44.5%	10
Colorado	1,982	1,553	3,535	43.9%	11
Mich, E	3,021	2,350	5,371	43.8%	12
Penn, M	1,725	1,225	2,950	41.5%	13
Arizona	5,119	3,250	8,369	38.8%	14
N. Y., E	4,304	2,716	7,020	38.7%	15
N. Y., W	1,372	811	2,183	37.2%	16
Wisc, W	616	358	974	36.8%	17
Ill, C	995	567	1,562	36.3%	18
Virg, E	2,531	1,417	3,948	35.9%	19
N Car, M	1,113	605	1,718	35.2%	20
Montana	611	323	934	34.6%	21
Cal, E	2,836	1,446	4,282	33.8%	22
La, M	613	308	921	33.4%	23
Ohio, S	1,951	964	2,915	33.1%	24
Ga, S	918	448	1,366	32.8%	25
Ga, M	1,123	545	1,668	32.7%	26
Ga, N	3,338	1,559	4,897	31.8%	27
Ala, N	2,602	1,201	3,803	31.6%	28
Maryland	2,650	1,183	3,833	30.9%	29
Tenn, W	1,175	519	1,694	30.6%	30
N. Y., S	7,512	3,279	10,791	30.4%	31
Iowa, S	647	267	914	29.2%	32
New Hamp	506	209	715	29.2%	32
Ark, E	1,416	574	1,990	28.8%	34
Fla, N	1,494	595	2,089	28.5%	35
Oregon	1,360	543	1,903	28.5%	35
La, W	1,386	543	1,929	28.1%	37
Ill, N	6,416	2,488	8,904	27.9%	38
Virg, W	1,024	377	1,401	26.9%	39
Ind, N	1,551	565	2,116	26.7%	40
Nebraska	854	310	1,164	26.6%	41
Ken, E	1,425	510	1,935	26.4%	42
Fla, M	6,925	2,470	9,395	26.3%	43
Penn, W	1,786	620	2,406	25.8%	44
Okla, W	1,237	418	1,655	25.3%	45
Cal, N	3,179	1,073	4,252	25.2%	46
N Car, E	1,391	469	1,860	25.2%	46
Texas, S	8,089	2,718	10,807	25.2%	46
Ind, S	2,195	709	2,904	24.4%	49
Miss, N	687	220	907	24.3%	50
Wash, W	2,399	758	3,157	24.0%	51
Puer Rico	1,687	526	2,213	23.8%	52
Mich, W	1,385	425	1,810	23.5%	53
Iowa, N	596	169	765	22.1%	54
Ark, W	801	220	1,021	21.5%	55
Minnesota	2,993	738	3,731	19.8%	56
Okla, E	361	89	450	19.8%	56
S Car	3,356	820	4,176	19.6%	58
Conn	1,788	419	2,207	19.0%	59
Mass	2,173	493	2,666	18.5%	60
Hawaii	702	157	859	18.3%	61
Nevada	2,601	571	3,172	18.0%	62
W Virg, N	877	190	1,067	17.8%	63
Mo, E	2,024	435	2,459	17.7%	64
Miss, S	1,325	267	1,592	16.8%	65
D. C.	1,639	317	1,956	16.2%	66
Alaska	336	62	398	15.6%	67
Cal, S	4,941	869	5,810	15.0%	68
Texas, W	6,965	1,194	8,159	14.6%	69
S Dakota	617	105	722	14.5%	70
Okla, N	812	121	933	13.0%	71
Fla, S	8,583	1,200	9,783	12.3%	72
N. J.	7,119	990	8,109	12.2%	73
Ohio, N	2,818	367	3,185	11.5%	74
Wisc, E	1,310	161	1,471	10.9%	75
N Mexico	4,165	464	4,629	10.0%	76
N Car, W	1,595	163	1,758	9.3%	77
Texas, N	5,194	521	5,715	9.1%	78
Ala, S	817	76	893	8.5%	79
Tenn, M	2,904	267	3,171	8.4%	80
La, E	2,708	211	2,919	7.2%	81
Tenn, E	2,036	155	2,191	7.1%	82
Cal, C	10,294	714	11,008	6.5%	83
Ill, S	7,564	416	7,980	5.2%	84
Texas, E	4,111	205	4,316	4.7%	85
W Virg, S	3,210	123	3,333	3.7%	86
R. I.	1,991	49	2,040	2.4%	87
Idaho	559	7	566	1.2%	88
Delaware	2,061	0	2,061	0.0%	89
N Dakota	617	0	617	0.0%	89
Wyoming	354	0	354	0.0%	89

* Criminal defendants sentenced plus civil cases closed during calendar year 2014.

In his interview with TRAC, Chief Judge McKinley of Western Kentucky was asked what it was like managing a court with such a large percentage of senior judges.

"Well, it's interesting to be the chief judge to three former chief judges in the same district," McKinley said, also noting that he was the only non-senior judge in his district for much of 2014. "That's just a little bit different, but we make it work."

Judge McKinley said that at national judicial conferences, concerns have been expressed "about the cost of providing space and staff to senior judges." But he said those comments were often followed by remarks from judges in other districts "who say the seniors are essential to the management of the district's caseload."

Meanwhile, at the opposite end of the spectrum, there are three courts where the senior judges played no role — Delaware, Wyoming, and North Dakota[4].

Part of the workload variations in the districts are, of course, driven by the actual availability of judges in each district who have chosen senior status. With the highest proportion of senior judges (67%), the Western District of Kentucky also ranked first in the proportion of the workload handled by senior judges (75.1%). And two of the three districts where senior judges played no role — Idaho and Wyoming — had no senior judges.

However, between these two extremes, given the varying workloads handled by each judge, some districts depended more heavily on their senior judges than their sheer numbers might suggest. For example, Vermont which ranked second in its reliance on senior judges, was ranked only 36th for its relative number of retired judges.

Figures on the number of judges in each district by their status during 2014 are shown in Table 4. When judges didn't serve the entire calendar year, counts were allocated based upon time spent. For example, because Kentucky West had two judges who did not clear their confirmation hearings, respectively, until December 5 and December 10 of 2014, their time was prorated to reflect the very small proportion of the year they actually served. A third judge in that district retired on April 1, 2014 so his time was allocated 0.25/0.75 between the regular versus senior status. Situations like this result in a judge "count" for a district with a decimal to reflect the proportion of time during calendar 2014 that they served in each status.

Table 4. Number of Regular versus Senior Judges by District, 2014*
(Click column header to sort, click table title to open in new window)

District	Judges by Status**			Percent Senior	Rank
District	Regular	Senior	Total	Percent Senior	Rank
Ken, W	1.4	2.8	4.1	67%	1
Wash, E	3.2	6	9.2	65%	2
Ala, M	2	3	5	60%	3
Utah	3.7	5.3	9	59%	4
Iowa, S	3	4	7	57%	5
Montana	3	4	7	57%	5
S Dakota	3	4	7	57%	5
Fla, N	4	5	9	56%	8
Penn, E	16.8	21.0	37.8	55%	9
Mich, E	14.2	17.0	31.2	55%	10
Nebraska	2.8	3.2	6	54%	11
Penn, M	6	7	13	54%	12
Maine	2.7	3	5.7	53%	13
Ga, N	7.4	8	15.4	52%	14
Ark, W	2.8	3	5.8	52%	15
Mo, W	5.3	5.5	10.8	51%	16
Alaska	3	3	6	50%	17
Cal, E	5	5	10	50%	17
Ill, C	4	4	8	50%	17
Iowa, N	2	2	4	50%	17
N Car, E	3	3	6	50%	17
N. Y., W	4	4	8	50%	17
Oregon	6	6	12	50%	17
N. Y., N	4.1	4	8.1	49%	24
N. Y., E	13.8	13.2	27	49%	25
Kansas	5.0	4.7	9.7	49%	26
Ill, N	20.6	19.1	39.7	48%	27
Nevada	6.6	6	12.6	48%	28
Maryland	9.1	8.2	17.3	47%	29
Fla, M	14.3	12.8	27	47%	30
Ala, N	7	6	13	46%	31
Penn, W	7	6	13	46%	31
Wash, W	7	6	13	46%	31
Arizona	10.7	9.0	19.7	46%	34
S Car	8.4	7.1	15.6	46%	35
Vermont	1.9	1.5	3.4	45%	36
Tenn, M	3.9	3.1	7	44%	37
N. Y., S	28	22	50	44%	37
Okla, W	5.3	4.1	9.3	44%	39
Hawaii	4	3	7	43%	40
Okla, E	1.3	1.0	2.3	43%	41
Virg, E	10.8	7.8	18.6	42%	42
Mo, E	8	5.5	13.5	41%	43
Tenn, E	4.7	3.2	7.8	41%	44
Ga, S	3	2	5	40%	45
Miss, N	3	2	5	40%	45
Miss, S	6	4	10	40%	45
New Hamp	3	2	5	40%	45
Virg, W	3	2	5	40%	49
Texas, S	14.5	9.5	24	40%	49
Fla, S	15.5	10	25.5	39%	51
Ohio, S	8	5	13	38%	52
Ark, E	4.8	3	7.8	38%	53
Wisc, W	1.6	1	2.6	38%	54
Conn	7.5	4.5	12	38%	55
Ind, N	5	3	8	38%	56
Ken, E	5	3	8	38%	56
Puer Rico	6.8	4	10.8	37%	58
Colorado	7	4	11	36%	59
La, W	7	4	11	36%	59
Minnesota	7	4	11	36%	59
Cal, N	14.5	8	22.5	36%	62
Ill, S	3.4	1.8	5.2	35%	63
Ga, M	3.4	1.7	5.1	34%	64
Mich, W	4	2	6	33%	65
N Dakota	2	1	3	33%	65
D. C.	13.7	6.8	20.5	33%	67
Ohio, N	11	5	16	31%	68
N. J.	16.1	7	23.1	30%	69
Mass	11.1	4.8	15.8	30%	70
N Mexico	7	3	10	30%	71
Tenn, W	4.7	2	6.7	30%	71
N Car, M	3.5	1.5	5	30%	73
La, M	2.4	1	3.4	29%	74
Cal, S	12.6	5	17.6	28%	75
Ind, S	4.5	1.5	6	25%	76
Ala, S	3	1	4	25%	77
R. I.	3	1	4	25%	77
W Virg, N	3	1	4	25%	77
Okla, N	3.3	1	4.3	23%	80
Cal, C	26.6	7.8	34.4	23%	81
Texas, N	11	3	14	21%	82
Delaware	4	1	5	20%	83
La, E	12	3	15	20%	83
Texas, W	12	3	15	20%	83
Wisc, E	4.1	1	5.1	20%	86
N Car, W	5	1	6	17%	87
W Virg, S	5	1	6	17%	87
Texas, E	6.1	1	7.1	14%	89
Idaho	2	0	2	0%	90
Wyoming	3	0	3	0%	90

* Article III district court judges by employment status, calendar year 2014. Senior judges include all judges who have retired whether or not they are actively hearing cases.
** Judges who served only part of a year, or retired during 2014 were credited with the proportion of the year served by status. For judges that had split appointments serving in more than one district, judge service was proportioned between the appointment districts.

As suggested by Judge Tymkovich above, there is a potential cost in the nation's growing use of senior judges. How long will this unusual assemblage be able to provide the American people a fair and effective system of justice in the face of a political stalemate that now is preventing the regular judicial workforce from keeping up with its growing caseload?

Federal Senior Judges Carry a Growing Workload