A federal district court rejected Judge Pauline Newman’s challenge to the suspension in the U.S. Court of Appeals for the Federal Circuit. Chief Circuit Court Judge Kimberly Moore suspended Judge Newman due to his alleged physical and cognitive disabilities. Judge Newman, 97, denied the allegations. Reuters reports that she plans to appeal.
Regardless of whether Judge Newman remains fit for judicial service (and whether there are legal issues with Chief Judge Moore’s treatment of her), the episode highlights a potential problem with lifetime tenure: Sometimes judges don’t know when to resign.
A few years ago, historian David Garrow wrote an extensive law review article on the subject in “The Mental Decline of the United States Supreme Court: The Historical Case of the 28th Amendment.” University of Chicago Law Review. This is a fascinating read. Here’s a taste of the presentation:
Mental aging and incapacity plagued the U.S. Supreme Court from the 1790s to the 1990s. The history of the Court is replete with examples of judges who have cast a deciding vote or otherwise actively participated in the work of the Court when their colleagues and/or family members had serious doubts about their mental capacity. Contrary to conventional wisdom among legal scholars and historians, a thorough survey of Supreme Court historiography shows that mental decline was a more common problem in courts in the 20th century than in the 19th century. Historical evidence convincingly demonstrates that mental decline among older judges is a long-standing problem that deserves serious attention. . . .
More than seventy years ago, former Justice and future Chief Justice Charles Evans Hughes publicly emphasized: “[i]Over the next few years, little changed. , Thurgood Marshall, Harry A. Blackmun and John Paul Stevens were early supporters of mandatory retirement at age 75 for chief justices. pointedly warned about “the importance of the Supreme Court”. Still an undeniable fact.[t]The judiciary is the nation’s most important senior profession. And reveals how unfortunately, as Charles Evans Hughes said in 1928, today’s conclusions remain incomplete.[t]The biggest concern is not disease, but aging.
Garrow suggested amending the constitution to make retirement mandatory at 75.
Some states have age limits for judges. For example, in Ohio, no one can be appointed or elected as a judge once they reach the age of 70. Federal courts have no such restrictions.
Since there is no age limit, we expect our judges, especially our Lord Chancellor, to be old. Interestingly, this year we have a presidential election where both major party presidential candidates are older than every member of the Supreme Court. This is quite remarkable (and probably unprecedented).
We should be concerned about aging in the courts. We in the White House should be worried about this, too.
