This is the first in a series of posts briefly touching on overlooked or misunderstood parts of the Sixth Circuit. It will look at topics like senior judges, visiting judges, staff attorneys, the role of clerks and case managers, the clerk’s office, the bankruptcy appellate panel, and the circuit mediators. The series begins by looking at the Circuit’s senior judges.
Nine of the Sixth Circuit’s twenty-four judges – 38% — are on senior status: Judges Daughtrey, Keith, Kennedy, Guy, Gillman, Merritt, Norris, Siler, and Suhrheinrich. Any of the judges could retire at any time with full salary guaranteed for life (actually, more than a full salary, as they would then be exempt from FICA taxes and could collect Social Security), but instead choose to remain on the court. Senior judges have reduced administrative duties and, to some extent, are able to pick what kind of cases they judge – many, for example, will not take pro se or death penalty cases. Some senior judges work at the Federal Judicial Center or in other administrative duties, and others frequently sit by designation on other courts.
The Sixth Circuit has a special reliance on its senior judges. During the Senate’s refusal to confirm judges to the Sixth Circuit in 2002, the circuit had twelve senior judges but only eight active judges. Under the federal statute creating senior status, 28 U.S.C. § 371, a judge with senior status need only take one quarter of the workload of a judge in active service. But even with the circuit up to nearly full strength, with only one vacant seat, senior judges still account for about 25% of appeals decided on the merits. (Another 9% are decided by visiting judges, many of whom are also on senior status). Leaving out administrative duties, senior judges in this circuit – who are allotted only two clerks instead of four – appear to be taking around 60% of the workload of an “active” judge.
The Sixth Circuit’s heavy reliance on senior judges reflects a trend across the circuits. The number of senior judges as a percentage of circuit judges has slowly grown from 30% in 1990 to 40% today. The Second Circuit, in particular, relies upon its senior judges for a full 36% of its cases. Though there is some criticism of senior judges as being unwilling to retire, even from official sources, our current system could not function without them.