Supreme Court watchers often speculate about aging justices holding off retirement until the election of a president who will pick an ideologically similar replacement.
But some Washington conservatives are questioning whether a federal district judge here is doing the same thing - and getting help from two colleagues who have added some of his cases to their own already heavy caseloads.
U.S. District Judge Charles Kornmann, 69, put off his retirement after two fellow Democratic judges agreed to share his workload - a move that could allow someone from their party to get Kornmann's job if a Democrat is elected president in 2008.
Kornmann and one of the other judges acknowledged the arrangement in interviews with The Associated Press. Joseph Haas, the federal clerk of court for South Dakota, also confirmed some of the Kornmann's caseload was reallocated last fall.
Kornmann, who handles cases in Aberdeen and Pierre for the northern and central sections of the state, said he could have reduced his caseload and become a senior judge last fall. But he stayed on full-time after U.S. District Judges Karen Schreier in Rapid City and Lawrence Piersol in Sioux Falls took on about two-thirds of the criminal cases in Pierre.
Democratic President Bill Clinton appointed all three in the 1990s.
"The other judges don't want me to retire," Kornmann said. "I don't plan to do anything for a time. I could have taken senior status in September but in view of them helping out that much, I decided not to do it."
When asked why they helped, Kornmann joked: "They think I'm such a wonderful judge. It has nothing to do with who the president is."
He added: "It might have something to do with it."
If Kornmann retired now, U.S. Sen. John Thune would recommend a replacement to President Bush, who would send the nominee to the Senate for confirmation. Since Thune and Bush are both Republicans, the candidate likely would be as well.
Lee Epstein, an author and law professor at Northwestern University in Chicago, said some Supreme Court and other appellate justices time their retirements, but it usually doesn't happen in lower courts.
She said she is unfamiliar with the South Dakota situation but research indicates federal judges do sometimes time "strategic retirements" in which they wait until "you've got a more favorable Senate, or usually president, who will fill your seat with someone you like, in terms of their partisanship or ideology."
Kornmann, Schreier and Piersol drew criticism last year for opposing the Bush administration's pick for interim U.S. attorney in South Dakota.
The judges wanted a former state attorney general to fill in as the interim federal prosecutor but the Justice Department wouldn't allow it because he hadn't gone through a background check.
An assistant U.S. attorney from another state ultimately was appointed until a South Dakota lawyer was nominated and approved.
Schreier declined to comment on whether she wants to keep Kornmann's seat from slipping into Republican hands.
Piersol said, "I would just say we're helping Judge Kornmann out. What he does is up to him."
Tom Fitton, president of the conservative Washington watchdog group Judicial Watch, said it would be unusual for two district court judges to help a colleague in hopes of keeping the seat within the party.
"The question is, 'Are these two other judges being overburdened with too many cases as a result of maintaining the current ideological makeup of the judges?'" he said.
It is odd for a federal judge's caseload to be reduced, Fitton said.
It might also be unethical, said Ed Whelan, president of the conservative Ethics and Public Policy Center in Washington.
"Active judges are required to carry full caseloads. If Judge Kornmann is no longer carrying a full caseload and if the other judges agreed to carry part of his caseload in exchange for his agreement not to retire, that would seem a form of bribery," Whelan said.
Kornmann, Piersol and Schreier have deep Democratic roots in a heavily Republican state.
Schreier is a former chairwoman of the South Dakota Democratic Party and Kornmann is a former state party executive director. Piersol served as majority leader of the South Dakota House as a Democrat in 1973-1974.
Piersol took heat from Republicans in 2004 for not recusing himself when then-Sen. Tom Daschle, a close friend, took Republican poll watchers to court the night before the election in which Daschle lost to Thune. [edit: see this]
South Dakota's federal judges are busy largely because of the high number of cases they handle from the state's American Indian reservations. Minor crimes are handled in tribal court but major cases go through the federal system. Kornmann's Pierre caseload is especially high.
To minimize travel costs, judges travel to courts instead of having witnesses and attorneys travel to them, said Haas, the court clerk.
Kornmann said he plans to keep working under the current arrangement and someday take senior status.
"One of the good things about the job is you don't have to retire unless you're senile. I think it's good for anyone to keep working, as long as you're healthy enough. That's a good fact about the job and you have an office to go so you're not driving your spouse nuts," he said.
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