Abstract
I examine judicial retirements among elected and unelected state supreme court justices. I present new data relating to justices’ economic incentives to retire. I develop theoretical expectations for the rationality of judicial departures based upon political, economic, and institutional factors. Results demonstrate that both elected and unelected justices time their retirements upon their pension eligibility. Nevertheless, the electoral connection may constrain justices from securing some of these benefits. I find only limited evidence that justices retire in order to influence the politics of their successors and virtually no evidence that elected justices retire out of fear of losing reelection.
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Notes
See “An Act to Amend the Judicial System of the United States,” Forty-First Congress, Sess. 1, Chapt. XXII (1869).
See 28 U.S. Code §371.
These states are Massachusetts, New Hampshire, and Rhode Island.
Twenty-two states in total use competitive judicial elections.
Even in states that use competitive elections, if a judge retires before finishing her term, a political elite (usually the governor) will appoint an interim judge who may run for a full term. This individual enjoys an incumbency advantage, even if it is not as great as the one an individual who was originally elected to her position does (e.g., Hall and Bonneau 2006).
See 28 U.S. Code §371.
See Code of Virginia, Title 51, Ch. 3.
See Michigan Code of Laws, Ch. 38, §2101–1670.
See 28 U.S. Code §371.
See Nebraska Revised Statutes, Ch. 24, §701-714.
Kentucky Revised Statutes, Title IV, §21.347
Missouri Revised Statutes, Title XXXII, Ch. 476, §530
Indeed, if she chooses to pursue other work in her retirement, then a pension might even result in a pay raise if she can find a job for which her income when added to her pension benefit, exceeds her judicial salary.
These courts were chosen for their institutional heterogeneity and due to the fact that none changed their methods for selecting judges during the period of analysis.
Elected state supreme courts include partisan (Alabama, Louisiana, Texas, and West Virginia), nonpartisan (Kentucky, Oregon, Washington, and Wisconsin) and hybrid (Michigan and Ohio) institutions.
Appointed state supreme courts include those selected by elected officials such as the governor or state legislature (Maine, New Jersey, South Carolina, and Virginia) in addition to those using commission-based recommendations (Iowa, Kansas, Nebraska, and Oklahoma).
In fact, only one retention-eligible justice in the dataset—David Lanphier of Nebraska-failed to win a retention election.
At most, I only have data from four states for each of the various types of elected or appointed courts represented in my sample of 18 states. Therefore, I am reluctant to over-generalize about what effects the independent variables have on judicial retirements in these institutions.
Under federal law, once a judge has vested, she is entitled to 100% of her active-status salary. No additional service can increase this percentage. Hence, such a variable would have been irrational in an analysis of federal judicial departures but is quite relevant here.
While subsequent scholarship has demonstrated some weaknesses in the PAJID scores (Bonica and Woodruff 2014; Windett et al. 2015), they remain the most comprehensive estimates of state supreme court ideology during the span of the study at hand. Windett et al. (2015) only calculate ideological scores for justices dating back to 1995, and Bonica and Woodruff (2014) scores are either incomplete or induced for many of these years or individuals. Therefore, PAJID scores are the most appropriate alternative available, as already demonstrated by Curry and Hurwitz (2016).
See Curry and Hurwitz (2016, 1065) for a lengthier explanation of this method.
I accounted for inflation using the U.S. Bureau of Labor Statistics inflation calculator at: goo.gl/JSYG6N.
See 536 U.S. 765 (2002).
Judges of Hispanic descent are classified as “Nonwhite.”
Analysis of Schoenfeld residuals finds no evidence of non-proportionality among appointed courts (Grambsch and Therneau 1994). Nevertheless, I do find some evidence of non-proportionality among elected institutions. Further analysis found that “Age” was the offending variable. Omitting justices’ ages from the hazards models eliminates issues relating to non-proportionality, and the results are nearly identical.
Replication materials, including data and code, are available at: goo.gl/vpj9Hz.
To ensure that states such as Virginia that award a constant benefit, regardless of years served, are not biasing these null results, I re-estimated Model 3 without them. The results, however, were unchanged.
As a robustness check, I re-estimated the proportional hazards models including only those states that, between 1980 and 2005, switched from not having any intermediate court to having one. The results were similar to those in Table 3, though the effect of “Intermediate court” was no longer statistically significant.
This last finding on partisanship is, however, consistent with previous scholarship.
This study did, however, control for some additional variables (such as chief justice status) and operationalized some concepts such as judicial pay slightly differently than Curry and Hurwitz (2016) did. Therefore, one study is not, strictly speaking, a subset of the other.
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Acknowledgements
I would like to thank Scott Ainsworth, John Brooks, Bob Grafstein, Todd Curry, Garrett Vande Kamp, and Rich Vining, in addition to participants at the 2017 annual meeting of the Midwest Political Science Association, along with the anonymous reviewers, for their valuable feedback regarding this research. I also thank Rich Fording for providing me with cost of living data in the American states. Finally, I am indebted to Xiaofeng Chen for her research assistance. All remaining errors are my own.
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Hughes, D.A. Judicial Institutions and the Political Economy of Retirements. Polit Behav 43, 1–27 (2021). https://doi.org/10.1007/s11109-019-09544-x
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DOI: https://doi.org/10.1007/s11109-019-09544-x