When Is a Judge Too Old to Judge?

Federal judges in America receive lifetime appointments, and many of them capitalize on the opportunity to stick around for what feels like forever. Out of more than 1,200 active and senior federal judges (those who receive a full salary but take a reduced caseload), 16 percent will be 80 or older by the end of 2017, and 39 will be at least 90, according to a database provided by the Federal Judicial Center. That excludes judges technically on senior status who are no longer hearing cases, according to individual court websites.

That's a sharp hike in elderly justices even compared to 2010, when a ProPublica review found 12 percent of sitting judges over 80, and 11 over 90. Of course, many older judges are flush with valuable wisdom and experience, but questions of cognitive competence have arisen publicly on several occasions over the years, perhaps most famously in the case of Richard Owen, a judge in the Southern District of New York. Lawyers who worked in front of Owen began questioning his fitness after he demonstrated repeated memory lapses on the bench, including apparently not knowing what e-mail was in a 2007 case. Appointed by to the court by Richard Nixon in 1973, Owen served until he passed away in 2015. He was 93.

There have even been incidents of Supreme Court justices continuing to serve in the throes of suspected mental incapacity. This included Reconstruction-era Justice Nathan Clifford, who was deemed "a babbling idiot" by another justice during one particularly rough stretch.

"Not being subject to compulsory retirement and able to delegate much of their work to staff, federal judges sometimes fail to retire even when old age and its related ills have greatly impaired their judicial performance," outspoken judge Richard A. Posner, who is 78 and has served on the Seventh US Circuit Court of Appeals since 1981, wrote in his 2016 book Divergent Paths. "To be blunt, there is a problem of judicial senility and it is growing with the general increase in the longevity of the American population."

Posner, who did not respond to an interview request, recently called for a mandatory retirement age of 80. That would require a constitutional amendment, and Congress has shown
no appetite for intervention, especially in an era when appointments are
so highly politicized. In the meantime, while judicial impeachment is possible, it's very rare, and so America relies on more informal means of policing the mental faculties of judges.

Ultimately, it falls on each federal circuit, or court system representing a particular geographic region, to come up with its own policy. "The [ultimate] responsibility for taking action when it is believed a judge is imparted by age or disability—that is the responsibility of the chief judge and no one else," says Arthur D. Hellman, a profesor at the University of Pittsburgh School of Law. When systems are working correctly, interventions and remedies take place behind closed doors. "If the chief judge is successful, you see the judge has taken senior status, or retired, but that's all we have," Hellman explains. "It gets a problem judge off the bench but preserves their privacy and personal dignity."

Some chief judges are more proactive than others. During Frank Easterbrook's tenure as head of the Seventh Circuit, he urged any performance issues about judges in his jurisdiction be brought to his attention. "Judges are not immune from the risks of aging," he said in 2008. "When a judge slows down, or becomes cranky, or shows signs of losing a step mentally, I need to know."

The Ninth US Circuit Court of Appeals has been perhaps the most activist, to use a loaded term in American law, when it come to addressing issues of judicial competence. The circuit started a wellness committee in 1999 and produces a handbook for judges with guidance on how to determine a potential problem and activate resources. "No subject is more difficult to talk about than aging issues because of the permanence of the problems," the guide notes. "The most common problems are increasing forgetfulness and declining mental acuity. On the bench, this is often manifest in an inability to track or retain details and a tendency to repeat requests for information that has already been presented."

The group offers several programs to help judges prepare for senior status or retirement and share information on aging-related challenges, according to Phyllis J. Hamilton, chief judge of the Northern District of California, who chairs the wellness committee.

"We just recently have started providing training for chief judges on cognitive impairment issues specifically," Hamilton adds. "They are more likely than others to be on the forefront to hear the complaints and grumblings and concerns of staff or other judges." Her district also uses a buddy system, designating a trusted confidant charged with initiating an informal intervention if a judge is suspected of overstaying his or her competence.

Gabe Roth, executive director of advocacy group Fix the Court, has pushed for other circuits to establish wellness committees of their own, and queried each appeals court about what anti-aging measures they've taken. The tenth, third, and fifth Circuits have all initiated wellness programs, while several other circuits responded that they were studying the issue, or use other informal methods to address judicial disability.

"Having a formalized policy is better than no policy," Roth says in an interview. "I think given the politicization of the nominating process of federal judges, any sort of meaningful policy will have to come from the Judicial Conference," the national policy-making body for federal courts.

Asked whether or not the Judicial Conference has a position on wellness committees, spokesperson David Sellers deferred to the discretion of the circuits. "By statute, each federal circuit judicial council has the authority to develop internal policies for governance of its circuit," he wrote in an email. "This includes matters related to wellness. A number of circuits have developed wellness committees or variations of these programs. The Judicial Conference and its relevant committees have been supportive of these local efforts."

On the possibility of a mandatory retirement age, Sellers pointed to the US Constitution's broad assertion that judges "shall hold their office during good behavior" and federal law establishing voluntary retirement conditions. Point is, this isn't a problem that's going to be solved anytime soon. Until it is, just pray you never have to stand before a federal judge who is way long in the tooth.

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