Judges as Party Animals: Retirement Timing by Federal Judges and Party Control of Judicial Appointments

Abstract

Longstanding debate over the Politicized Departure Hypothesis (PDH) asserts that federal judges arrange to retire under presidents of the same political party as the presidents who first appointed them, thereby giving that party the right to nominate their successor. PDH is important for assessing political party agency by judges, who receive no consequent personal benefit, and for explaining the long-term political party orientation of courts. Previous PDH studies suffer from absent data on known and unknown determinants of retirement timing and correlational rather than causal methods. To avoid both problems, we apply 11 sharp regression discontinuity (SRD) analyses to voluntary judicial departures before and after six elections (1920-2016) that replaced Democratic presidents with Republicans and five elections that replaced Republicans with Democrats. We contrast judicial decisions to retire, resign, or take senior status during the days before a regime-changing election with such decisions during an equal number of days after the inauguration of a president from the other party, with tests performed for periods approximating 6, 9, 12, 18 and 24 months. For pre-election and post-inauguration observation periods of 270 days, for example, the results of 10 of 11 analyses, including difference tests and difference-in-difference tests, are as predicted by PDH: judges were more likely to retire when the same party holds the presidency as when they were first appointed to the federal bench. Serendipitously, judges appointed by Republican presidents appear to respond more strongly than Democratic appointees to changes in the party holding the White House. We offer a novel explanation of PDH based on normative reciprocity in addition to ideology. We also suggest using politicized departure to examine effects of former judges’ political party agency on their prior judicial decisions.