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Thursday, September 07, 2006 

Surprise Vacancy

Confirm Them broke the story that Judge Patrick Higginbotham of the Fifth Circuit Court of Appeals has decided to take senior status. The judge decided to surprise everyone and not give any advance notice.

Senior status is an interesting aspect of the federal courts. When judges reach a combination of age and years of federal service (80), they can take senior status. They still get their original, full time salary, but they only work part time. Once a judge takes senior status, their seat becomes vacant. This means that President Bush gets to appoint another judge to the Fifth Circuit, a fairly conservative court.

Who should the President appoint? If I were president (shudder at that thought), I would pick Texas Solicitor General Ted Cruz. He has an impressive resume: Princeton, Harvard Law, clerking with former Chief Justice Rehnquist, Director of the Office of Policy Planning at the Federal Trade Commission, and Associate Deputy Attorney General at the US Department of Justice. Cruz also did an excellent job arguing before the Supreme Court this past term in LULAC v Perry. He's also only 36 years old. He could amass a lot of experience on the Fifth Circuit and still be young enough to be an excellent Supreme Court pick in 10 years.

That senior status thing sounds pretty sweet. My dad is 51 and has been with the same company since 1975. If senior staus existed in the private sector (as if), he could work half and get paid the same, with less to worry about at work. As for people our age, it's hard to imagine being with the same company even half that long, so I don't think it would work quite the same.

It is nice, but it's got some problems. Judges don't have to take senior status when they become eligible. In fact, many of them don't. Judge Posner is a good example.

It would be nice if he did take senior status, so the president could appoint another excellent judge to the Seventh Circuit (a young one that will be around for many more decades). But it's Posner's call to make. It's his seat.

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