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Biden Immediately Gets First Judicial Vacancy to Fill — And Many More Are Likely to Follow


Less than an hour after taking office, President Joe Biden was gifted an opportunity and a test in the form of a federal judicial vacancy.

“February 24, 2021 will be my last day in regular active service as a United States District Judge for the Eastern District of Michigan,” Victoria A. Roberts wrote in a brief letter sent Wednesday. “I intend to continue to provide judicial and administrative services as a Senior Judge under 28 U.S.C. §371(e)(1) and the Rules of the Sixth Circuit for Certification of Senior Judges. It has been my honor to serve.”

Under the above cited statute, federal judges are allowed to step back from daily duties and half-retire in a sense by taking on “senior” status–which opens up a judicial vacancy while allowing the pseudo-retired judge to occasionally adjudicate cases. Unlike most workers in the United States, judges who retire in this manner “receive an annuity equal to the salary” they previously received “during the remainder of [their] lifetime.”

“With respect, I congratulate you on your election as the 46th President of the United States, and Kamala Harris on her election as Vice President,” the 69-year-old Bill Clinton appointee added.

Judicial reform advocates seized upon the news.

“I can’t imagine that Judge Roberts’ letter was written in a vacuum, and I have to believe the Biden administration knew it was coming,” Gabe Roth, executive director of non-partisan advocacy organization Fix the Court told Law&Crime. “If I were advising the president, I’d have had a nominee named by the end of the day, as a signal that the administration is taking judicial vacancies with the utmost seriousness.”

“Not only will the timing of the nominee be interesting to watch but so will the resume,” Roth continued. “Judge Roberts is Black, and Biden has promised to appoint more minorities to the federal bench. But she’s also a former prosecutor, and you’ll recall that the administration has promised to nominate more public defenders and civil rights attorneys.”

“Time to get to work,” tweeted Demand Justice, the leading progressive judicial reform organization, in response to Roberts’ forthcoming step away from the bench.

Legal experts predicted that Judge Roberts’ move was likely akin to the trout who broke the dam.

“Look for [Central District of California] Judge [David O.] Carter to do this,” wrote legal journalist Meghann Cuniff via Twitter. “Probably not immediately, but within the next couple years or so. (He’ll still be able to work the LA homeless case and can take on related cases if he chooses.)”

“President Biden‘s first chance to begin rebalancing the federal courts,” tweeted The Economist‘s Supreme Court reporter Steven Mazie, an apparent reference to the unprecedented number of judicial vacancies filled by Biden’s immediate successor. Most of those appointees were vetted by the Federalist Society and individuals closely affiliated with the conservative movement.

Progressive activists and many legal commentators widely believe the Federalist Society to be a corrosive and anti-democratic force on the judiciary somewhat akin to a Fifth Column intent on rolling back the reforms instituted during the Earl Warren era.

University of Texas Law Professor Steve Vladeck offered some perspective on the likelihood of that proverbial dam breaking–reciting the statutory conditions that will govern the judges eligible to take the Roberts exit.

“Every federal judge in active service (1) who is at least 65; and (2) whose age [plus] time-in-service is at least 80 may take “senior” status, which opens up a seat for President Biden to fill,” he noted via Twitter. “Judge Roberts is the first to announce such a move, but she certainly won’t be the last.”

There are currently over 30 federal appellate judges eligible to take senior status who were appointed by Democratic Party presidents. There are around 300 federal district judges appointed by Democrats who are eligible for such a sendoff.

The U.S. Court of Appeals for the Ninth Circuit is likely to be a focal point of this incoming retirement wave.

“I anticipate quite a few people doing things to enter senior status,” an anonymous Ninth Circuit judge recently told the Los Angeles Times.

“Clinton judges across the country have just been holding on,” another judge told the outlet.

[image via Alex Wong/Getty Images]

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