For some reason, there is a lot of stigma around clerking for senior judges, at least at my law school. (I’ll quickly note that I am unaware whether state court benches also have senior judges. When I use the term here, I am referring to senior judges on the federal bench.)
So, should you apply to a senior judge? The answer is, it depends.
First, let’s talk about the difference between a senior and active judge. An Article III judge is a judge who has a lifetime appointment on the federal bench. An active judge takes cases off of a “wheel” – meaning they are randomly assigned – and they have to adjudicate those cases.
After the judge has been on the bench a certain number of years and has passed a certain age threshold, they can take senior status. Once they go senior, they can take a reduced case load – and specifically, they can pass on cases they don’t want to adjudicate. One big benefit to the bench is that it frees up a seat for another full-time appointment.
Why can senior judges pass on cases? Well, they’re essentially volunteering their time. Once they spend that certain number of years on the bench and hit that certain age threshold, they are actually eligible to retire with their annual salary intact. And some judges – having given years upon years of service – do just that. (And they have every right to.)
So when a judge goes senior, it essentially means she or he is volunteering their time. And with volunteering comes the benefit of passing on cases that don’t particularly interest the judge. It also means they can take fewer cases, giving themselves a lighter caseload than active Article III judges. Again, all the work they do is voluntary, so it’s their call.
Of course, there may be some downside to you. Perhaps the senior judge who just gave you an offer doesn’t love taking on prisoner rights’ cases, and that’s a big area of interest for you. Or maybe they will want to pass on employment discrimination cases, and you applied to the federal bench to get experience in Title VII.
Those are very real reasons to pass on a clerkship. The point is not just to have it on your resume, but to learn the skills you need for the next stage in your career.
Some senior judges, meanwhile, continue taking a full case load and never (or rarely) pass on civil rights cases. Those judges may be great for you.
Of course, you don’t want to get to the point of figuring this out only after you have applied – or, even worse, after getting an offer. So the best thing you can do is some research before you apply. (Click here for an article on how to do just that.) And when it comes to senior judges, try your best to talk to past clerks as well as practitioners in the judge’s community to get a sense of how her or his case load has changed since taking senior status, especially if that is a recent change.