The Last of Us
Everything you ever wanted to know about extremely long-serving judges but were afraid to ask
Yesterday, Maria Araujo Kahn was confirmed by the Senate to the U.S. Court of Appeals for the Second Circuit. When she takes her seat on the court in the next few days, Judge Jose Cabranes will take senior status. This will be a historic moment: Judge Cabranes is the last appointee of President Carter to be an active (non-senior) federal judge. Judge Cabranes was appointed to the District of Connecticut by President Carter, and then elevated to the Second Circuit by President Clinton.
Upon Judge Cabranes’s retirement, the longest-serving active federal judge is Judge Ricardo Hinojosa, a Reagan appointee to the Southern District of Texas who began active service on May 5, 1983. Having double-checked this, it appears that Judge Hinojosa is the longest-serving active judge at any level of the federal judiciary—all of President Reagan’s previous appointees at both the district court and circuit court level, and all appointees of all prior presidents at both the district court and circuit court level, are no longer in active status (although several continue to hear cases in senior status). In second place is Julia Smith Gibbons, who began active service on the Western District of Tennessee on June 6, 1983 and was subsequently elevated to the Sixth Circuit, followed by Pauline Newman, who began active service on the Federal Circuit on February 28, 1984.
In this post, I will offer some interesting, to me, facts about federal judges who served a really long time. The post is long enough that I will split it into two, so you will have to wait until next week for the climax, involving 19th century judges. If this sounds boring to you, please stop reading, but I will try to keep it lively.
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Let’s start by looking at the last appointees of some recent Presidents. The second-to-last Carter appointee was none other than Stephen Breyer, appointed to the First Circuit by President Carter and elevated to the Supreme Court by President Clinton.
I would have thought the third-from-last would be Justice Ginsburg, originally a Carter appointee to the D.C. Circuit, but it actually turns out to have been Judge Carmen Consuelo Cerezo of the District of Puerto Rico, who took senior status on February 28, 2021. I do not know much about Judge Cerezo. I had a vague recollection that she authored a classic in the annals of unusual judicial opinions, Conde Vidal v. Garcia-Padilla, 167 F. Supp. 3d 279 (D.P.R. 2016), which held that Obergefell v. Hodges doesn’t apply in Puerto Rico, but that actually turned out to be by a different Carter appointee, Juan Perez-Gimenez. The Notorious RBG will have to settle for the preantepenultimate slot on this list, with Stephen Reinhardt ranking as fifth from last.
(If you are wondering what my all time favorite unusual judicial opinion is, it’s the dissent of former Michigan Supreme Court Justice Elizabeth Weaver from the appointment of one of her colleagues as Chief Justice, which you can download below.)
The last couple of years have been very busy for this particular milestone. In just four and half years, we’ve gone through the last active appointees of four Presidents: Carter, Ford, Nixon, and Johnson.
The last active Ford appointee was Joel Flaum, who authored the opinion in the case in which I presented my first ever appellate argument. Judge Flaum was appointed to the Northern District of Illinois by President Ford, was elevated to the Seventh Circuit by President Reagan, and took senior status on November 30, 2020. He eked out Juan Torruella by a month; Judge Torruella was originally a Ford appointee to the District of Puerto Rico before being elevated to the First Circuit by President Reagan. He passed away, while still an active judge, on October 26, 2020. Third-from-last was John Thomas Copenhaver, a district judge on the Southern District of West Virginia, and fourth-from-last was Anthony Kennedy, a humble Ford appointee to the Ninth Circuit prior to his service as The Decider.
Judge Torruella was, I would guess, the only sitting federal judge to compete in the Olympics. He represented Puerto Rico (which has its own Olympic team) in yachting, which is apparently an Olympic sport, in 1964, 1968, 1972, and finally—following his appointment to the federal bench—in 1976. I’m aware of only one other federal judge who was an Olympian: John Davies, the judge who sentenced the police officers who assaulted Rodney King, won an Olympic gold medal in swimming, weirdly for the Australian Olympic team. Maybe there were others; anyone know? Byron (Whizzer) White never was an Olympian; outrageously, football (or as the IOC corruptly calls it, “American football”) is not an Olympic sport.
The last active Nixon appointee was Gerald Tjoflat, who was appointed by President Nixon to the Middle District of Florida, elevated to the Fifth Circuit by President Ford, and transferred to the Eleventh Circuit during the Carter administration. He took senior status on November 19, 2019, after 49 years in active service, the fourth longest tenure of all time. And he remained very active during his tenure, for example authoring a 226-page solo dissent in an en banc case 47 years into his career, which has to be a record. The second-last was a legendary Nixon appointee in the District of Massachusetts, Joseph Tauro, who struck down the Defense of Marriage Act in Gill v. OPM. He took senior status in 2013.
#3 on this list was Justice John Paul Stevens, originally a Nixon appointee to the Seventh Circuit before being elevated to the Supreme Court by President Ford. On Justice Stevens’ 30th anniversary at the Court, President Ford said: “I am prepared to allow history’s judgment to rest (if necessary, exclusively) on my nomination . . . of Justice John Paul Stevens to the U.S. Supreme Court.” Here are the statements of other Justices upon Justice Stevens’ retirement and his passing. All of his colleagues truly respected him; they were not just trying to be polite. I particularly liked Justice Thomas’ statement upon Justice Stevens’ retirement: “I am deeply honored to have served with Justice Stevens. From my first days on the Court and throughout our time together, he has been a model of kindness and decency. I will treasure the years I have been privileged to work with him. I am certain that he will be remembered for his keen intellect and his prodigious body of work here at the Court. And, he should be. I consider it my good fortune to have served so long with him and to know that he is my friend. Virginia and I will miss him and Maryan.” I have found that the more I read Justice Stevens’ opinions, the more I admire him.
The last active appointee of Lyndon Johnson was Manuel Real, who took senior status on November 4, 2018, after an incredible 52 years as an active judge, the third-longest tenure of all time. Although exact statistics are not available, I am 99% certain Judge Real was the most reversed judge of all time. Judge Real was to reversals what Nolan Ryan was to strikeouts, combining a historically high per-case reversal rate with an a historically long tenure.1 For a taste of Judge Real's jurisprudential style, here is an excerpt from Justice Stevens' dissent in Republic of Philippines v. Pimentel, 553 U.S. 851 (2008):
It appears, for example, that the District Judge summoned an attorney representing Merrill Lynch to a meeting in chambers in Los Angeles on September 11, 2000, after learning that the Republic and the Commission sought to obtain the Arelma funds from Merrill Lynch. During these proceedings, the District Judge directed Merrill Lynch to file an interpleader action before him in the District of Hawaii and to deposit the Arelma funds with the court, despite the attorney's argument that New York would likely be the more appropriate forum. See ante, at 2186-2187; Tr. 6 (Sept. 11, 2000). Merrill Lynch filed the interpleader on September 14, 2000, and the District Judge sealed the file, making it difficult for other parties to determine the status of the proceedings. See Affidavit of Richard A. Martin in Support of the Motions To Dismiss, Transfer or Stay Submitted by the Republic of the Philippines and the Presidential Commission on Good Government in Civ. No. CV00-595MLR (D.Haw.), ¶¶ 6-7, 11. These actions be-speak a level of personal involvement and desire to control the Marcos proceedings that create at least a colorable basis for the Republic and the Commission's concern about the District Judge's impartiality.
Ya think! That said, I know one of Judge Real’s former law clerks, who characterized the clerkship as the greatest experience of his professional career. I am sure Judge Real’s war stories must have been incredible. The final interesting fact about Judge Real is that he presided over the King Kong litigation of the 1970s, which was a big thing at the time, so to speak.
The second-to-last Johnson appointee was Harry Pregerson, who was appointed to the Central District of California by Johnson, elevated to the Ninth Circuit by Jimmy Carter, and finally took senior status in 2015 after 48 years as an active judge, the longest active tenure of any judge who wasn’t the longest-serving judge for his appointing President. Judge Pregerson’s oral argument questioning style was truly memorable, and we are blessed that the Ninth Circuit has preserved dozens of his oral arguments on video for posterity. Here is a particularly good example involving then 91-year-old Judge Pregerson (start at the 20-minute mark). Judge Pregerson finally took senior status in 2015 at the age of 92 because, as so many of us have found: “You know, at 92 you are not 82.” But even after taking senior status he maintained an impressively high caseload; his final oral argument was on November 14, 2017, 11 days before his passing.
Judges Pregerson and Real were the only active Johnson appointees for 17 years; the third-last Johnson appointee was William Wayne Justice, who took senior status in 1998.
How about prior Presidents? I won’t go through them all, but here are a few notables:
The last active Kennedy appointee was James “Tiny” Browning, who was an active judge on the Ninth Circuit until 2000 (and remained a senior judge for many years thereafter). #2 was Justice Byron White, who retired in June 1993.
The last active Eisenhower appointee was Giles Rich, a legendary patent judge. He was an active judge on the Federal Circuit when he died at age 95 on June 9, 1999. At the time, he was the oldest-ever active federal judge, but he has since been surpassed by Pauline Newman, an equally legendary patent judge, who remains an active judge on the Federal Circuit. Actually, the three oldest active federal appellate judges are all on the Federal Circuit: Judge Newman (age 95), Alan Lourie (age 88), and Timothy Dyk (age 86). Maybe patents are just really interesting? Anyway, #2 was Frank Minis Johnson, who was elevated to the 11th Circuit by Carter and took senior status in 1991, and #3 was Justice Brennan, who retired in 1990.
I would have thought the last active FDR appointee was Justice Douglas, but he actually turned out to be #3. The last was Luther Swygert, who was appointed to the Northern District of Indiana by FDR and elevated to the Seventh Circuit by President Kennedy, and who took senior status in 1981.
The last active appointee of President Taft was Learned Hand, who was elevated to the Second Circuit by President Coolidge and remained in active status until 1951. In a perfect world, Cousin Augustus would have been the longest-serving active appointee of his appointing President, but alas it was not to be: he was the fifth-last Wilson appointee to leave active status.
What can we glean from all of this?
First, Supreme Court Justices serve a really, really long time. I recognize this exercise wasn’t necessary to figure that out. But, I’m struck by the fact that Justices are consistently among the last few active judges of their appointing Presidents to retire. It’s also notable that of the 12 remaining active George H.W. Bush appointees, three are current Justices (Samuel Alito, Clarence Thomas, and Sonia Sotomayor).
Why do Justices stay active for so long? This is partially because Justices cannot take senior status and keep hearing Supreme Court cases (though they can ride circuit, as former Justice O’Connor did for a few years and former Justice Souter did for many years). It’s also partially because, well, it’s got to be fun to be a Supreme Court Justice.
Second, aside from Justices, an unusual number of longest-serving judges are district judges who have been elevated to the courts of appeals. Judges meeting this description include Judge Cabranes (longest-serving Carter appointee), Judges Flaum and Torruella (two longest-serving Ford appointees), Judge Tjoflat (longest-serving Nixon appointee), Judge Pregerson (second-longest-serving Johnson appointee), Judge Johnson (second-longest-serving Eisenhower appointee), Judge Swygert (longest-serving FDR appointee). Also, following Judge Cabranes’s retirement, the longest-serving current active federal appellate judge was also originally a district judge: Julia Smith Gibbons, who was appointed to the Western District of Tennessee by President Reagan in 1983 and elevated to the Sixth Circuit by President George W. Bush.
This might just be a coincidence, but the data are striking. I would speculate that judges who are motivated enough to seek a promotion even after they are appointed to lifetime judgeships will often be the type of judges interested in keeping a full caseload into their 80s.
Next week: The Last of Us Part II, consisting of some really amazing, to me, statistics from the 19th century, and a few equally amazing statistics from the 1970s.
For those who did not obsess over baseball statistics as kids, Nolan Ryan ended his career with a staggering 5,714 strikeouts, 839 ahead of #2 on the list, Randy Johnson. Ryan combined extremely high per-game strikeout rates—he struck out 383 batters in 1973, the single-season record—with an extremely long career—he played 27 seasons, a Major League record (tied with Cap Anson).