Pickering's status

[Edward A Hartnett]

I would envision that he would simply retire -- not take senior status --
the day (or the day before) his recess appointment expires.  He would not
be a "judge without a court" -- he would simply be a retired judge.

I share the assumption that accept of a commission as a circuit judge
vacates the prior office as district judge.  While I haven't come across
any particular authority that explicitly states this rule, it is an
assumption that seems to go back to as early as 1801:  The incumbent
district judge in South Carolina was nominated and confirmed as a circuit
judge in 1801 and Senator Read was nominated (and I think confirmed) to the
district bench, but the incumbent district judge refused to accept the
circuit judgeship (perhaps foreseeing that the job would not last),
choosing instead to retain the district judgeship, and thereby precluding
Read from taking office.

Ed Hartnett
Seton Hall




                                                                                                                                      
                      "Stephen Wasby"                                                                                                 
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                      conlawprof-bounces at lis        Subject:  Pickering's status                                                      
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                      01/18/04 10:53 AM                                                                                               
                                                                                                                                      
                                                                                                                                      





John Noble wrote:

He's a federal  district judge with life tenure. Does he have to
resign to take the Court of  Appeals post, or can he just return to
the trial court bench after a  "sabbatical"?

and then Doug  Laycock said Pickering would have to resign from the
district  court.

That raises the  question of whether, at the end of his recess appointment
"term," whether he  would
be "a judge  without a court."  He might have enough service+age combined
for senior  status, but
of what court?  Were his service on CA 5 to terminate at the end of his
recess appointment,  and,
assuming that  service created eligibility for senior status, it has to be
senior status ON A  COURT.
He wouldn't be  a member of CA 5 (under this hypothetical) and he would
have resigned  from
the district  court.  This may seem like hair-splitting, but can someone
help me here?  Would the
administration have nominated him (with the senior status matter in mind)
without checking this out?

Another version: his recess appointment terminates,  but Bush (having been
reelected) renominates him
and that time, he is confirmed.  Does anyone  know if "broken service"
matters for purposes of senior
status?

Steve Wasby

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