Have you ever wondered whether you should clerk for a Senior judge? Some clerkship candidates shy away from applying to this group of federal judges because they fear their clerkship duties will be curtailed due to a judge’s Senior status. Fear not! A great many Senior judges’ caseloads and duties are the same – or nearly the same – as those of their Active colleagues’. Read on to learn what Senior status means for judges and clerks.

There are three judicial statuses in federal courts – Active, Retired, and Senior – and they identify the office a particular judge holds and the corresponding requirements associated with the position. While the Active judicial status is pretty straight forward, the distinction between Senior and Retired can often be misunderstood.

To help clarify this misunderstanding, we’re going to turn to The Honorable Frederic Block, a Senior U.S. District Court Judge for the Eastern District of New York and a Cornell Law School graduate from the Class of 1959. Below, we’ll borrow some helpful snippets from Judge Block’s very informative Cornell Law Review article, Senior Status: An “Active” Senior Judge Corrects Some Common Misunderstandings , 92 Cornell L. Rev. 533 (2007). If you read through his article in its entirety, you’ll get the full grandeur of his insights, but the below will provide you with a brief overview of the most clerkship-relevant turns.

Judge Block’s article begins by providing the history behind how and why the three judicial statuses were formed. The option for a judge to take senior status did not always exist, but was originally created in the mid-1800’s to alleviate the pressures of a full workload on aging judges. To explain how this Senior status took shape, Judge Block quotes his colleague, Judge I. Leo Glasser, also of the Eastern District of New York, who states:

Prior to 1869, there was neither a resignation nor a retirement system available for federal judges. Old judges, even those who were either physically or mentally disabled, were compelled to remain in office as a regular active judge or resign without any retirement benefit whatsoever. By an Act of 1869, a judge appointed pursuant to Article III of the Constitution could resign at age 70 after ten years of service with a continued right to receive his salary for life thereafter. That Act, however, made no provision for continued judicial service and deprived the federal judiciary of the service of many very experienced and able judges who were willing to continue to work at least part-time if they were unable to continue to do so full time. Responding to that undesirable situation, [in 1919] Congress created the office of Senior Judge and thus enabled the federal judiciary to continue to benefit from the service of many dedicated and experienced judges. Id. at 535.

So, then, that’s the basis for the creation of Senior status, which allows judges not yet ready to retire a chance to continue to contribute to the valuable work to which they’ve dedicated much of their lives. Judge Block goes on to further define the requirements for Senior status:

Currently, any Article III judge or justice may take senior status after meeting the age and service requirements of the ‘Rule of Eighty’ – your age and years of service must add up to eighty, you must be at least sixty-five years old, and you must have been on the bench for at least ten years. In my case, since I was sixty years old when I became a district court judge, I satisfied all three criteria when I turned seventy, ten years later. Id. at 536.

Now, Judge Block will carefully clarify that, “[s]enior status is not to be confused with full retirement or resignation. Provided they render ‘substantial service’ to the courts, which may be satisfied by simply doing the same work as an active judge for three months per year, senior judges continue to perform the same judicial duties and receive the same salary as active judges.” Id. at 536. So, Senior judges continue to work on the same substance as their Active counterparts, but the workload decreases to a degree which is left, for the most part, up to the judges themselves. As Judge Block points out in his article, this change in status also “creates a vacancy, thereby paving the way for additional judicial help for the courts.” Id. at 538.

In contrast, a Retired judge “no longer performs judicial duties and is free to pursue, without limitation, any other employment (barring certain ethical conflicts).” Id. at 536. Retired judges still must meet the ‘Rule of Eighty’ in order to leave the bench with the status of Retired, which allows them to maintain their pre-retirement salary and benefits. This is in contrast to a judge simply resigning or leaving the bench prior to satisfying the ‘Rule of Eighty.’ Judges who resign receive no additional benefits, but often leave the bench to pursue opportunities in the private sector, which frequently provide their own rewards.

By now you must be asking yourself, “So how does this impact a Senior judge’s ability to retain clerks?” Well, according to Judge Block:

In an obvious show of respect for senior judges, the Judicial Conference of the United States has determined that senior judges who provide ‘substantial service’ are ‘entitled to continued office space and secretarial and law clerk support.’ While the circuit judicial councils are the ones who ultimately make specific staffing decisions, in practice a senior judge is allocated the same number of law clerks as an active judge, absent a significant reduction in workload. Id. at 539-540.

What you’ll get from reading the full article is the further explanation that Senior judges work to a degree that meets the combined needs of their courts and their individual abilities and inclinations. Senior judges, while not required to carry a “full” caseload, Judge Block asserts, at times carry as heavy a (if not a heavier) caseload when compared to their Active counterparts. Senior judges are given greater liberties in deciding what type of cases they preside over, along with having some other restrictions eased. Again, for a full explication, look to the primary article.

There are several benefits associated with clerking for a judge who has taken Senior status. Since the “Rule of Eighty” states that judges are required to have served for a minimum of 10 years prior to taking this status, one of the biggest benefits of working with a Senior judge is the amount of experience she or he has on the bench. This wealth of experience should directly correlate to a deep understanding of the law and the judicial process, and may be extremely rewarding for clerks looking to broaden their legal knowledge.

Another wonderful benefit to working with a Senior judge is that there are often opportunities for law clerks to work on assignments that an Active judge might not offer. As you’ll see – once you read the article in full – Judge Block, for example, was able to participate as a visiting judge in San Francisco on the Court of Appeals for the Ninth Circuit. Two of his law clerks accompanied him on this trip.

Judge Block gives some final advice in his article, regarding the steps you can take, as you apply for clerkship openings with Senior judges, which should benefit your candidacy:

Not to miss the special opportunities that clerking for an active senior judge may present, I suggest that the clerk applicant do some judge-specific due diligence. In addition to inquiring from the law school’s career placement office about the judge’s general reputation, the aspiring law clerk can obtain the monthly district court judges’ caseload statistics, both civil and criminal, from the Clerk of the judge’s court and may possibly obtain such statistics from the clerk’s office of the other district courts. As for senior circuit court judges, the putative law clerk should inquire from the circuit executive’s office as to the extent that the senior judges have cut back on their sittings. Moreover, each senior judge’s recent reported decisions of note would also be a good barometer of the dimension and quality of his or her senior work. Id. at 546-547.

This is very sound advice from a sitting Senior Judge and Cornell Law School graduate who has interviewed his share of clerks and knows how to spot due diligence at a distance. Knowing the distinction between Active, Senior and Retired judges will certainly put you in a great place to pose informed and well-researched questions when you apply and, hopefully, interview with these Senior members of the judiciary.

Now that you understand these important distinctions, we hope that you’ll give as much consideration to applying to clerk for Senior judges as you do for Active judges. As you research Senior judges, take in to additional consideration (1) how much work they, and in turn you, will have; (2) what type of cases are they inclined to take or turn down (3) what type of well-tailored interview questions will you raise after reviewing your judge’s recent cases, knowing that these cases are likely, or at least potentially, hand-picked?

If you would like to follow up your reading with a discussion on applying to Senior judges or would like to discuss applying for judicial clerkships more generally, Dean Peck would be happy to hear from you. Click here to schedule an appointment with Dean Peck.