In December 2017, I wrote in National Review that Republican-appointed judges should consider taking senior status so President Trump could fill those seats. That essay struck a nerve with a lot of judges. Some of them talked to me privately. Judge Leslie Southwick of the Fifth Circuit chose to address it directly in a Notre Dame Law Review article. Here is an excerpt:
The administration itself has apparently encouraged some judges to take senior status. Evidence of that came a few months after Don McGahn resigned as White House Counsel in October 2018;525 when he told the Houston chapter of the Federalist Society that circuit judges should retire in order to create more vacancies.526 Further, a South Texas College of Law professor, Josh Blackman, who is a widely followed commentator, has recommended retirements.527 Professor Blackman wrote in advance of the possible loss of a Republican Senate majority in the 2018 midterms, which did not happen; at least partially because of the risks presented by the 2020 elections, Majority Leader McConnell has personally contacted eligible judges "to sound them out on their plans and assure them that they would have worthy successors."528 A similar report by columnist Fred Barnes in March 2020 was that Senators McConnell, Grassley, and Graham together decided to urge retirements and had themselves talked to many of the eligible judges.529
As to my personal knowledge, I will borrow from the worn-out joke about whether someone believed in infant baptism: "Believe in it? I've seen it." My answer to whether I believe senior-eligible judges are in fact being urged to do the right thing and make room for the kind of exceptional judges being selected now is: Believe in it? I've seen it . . . or, at least, heard it. I just did not find it a sufficiently encouraging idea in my case. It was my impression that the person urging me and the individual who talked to another colleague were prompted from Washington. I did not ask, though.
I've kept that article in mind for the past nine years as Judge Southwick continue to serve in active status. Judge Southwick wrote an entire book about his struggle to get appointed to the Fifth Circuit. He gave a talk at the Houston FedSoc some years ago, and I was struck by someone who was so focused on securing a lifetime sinecure that it seemed to define him. I saw Judge Southwick as a man of principle who would hold his job till he could hold it no longer, and would not step down for alternative considerations. While I usually disagree with Southwick's rulings, I at least gave him credit for sticking to his convictions.
