Joel Cohen asked two judges a question. One judge, Jed Rakoff of the Southern District of New York, ended up in a position he likely didn’t anticipate when he agreed to the gig: playing straight man for the other, Seventh Circuit Judge Richard Posner. Then again, Posner is either a master troll, a brilliant pedagogue or completely senile. Of course, these options aren’t mutually exclusive.
The primary question was fairly straightforward, one that is subject to regular discussion with good reason.
Under the Constitution, federal judges, having life tenure, can be removed only by impeachment and only for “high crimes and misdemeanors.” But should it be that way? While we know there are federal judges in their 80s and even 90s who perform admirably, shouldn’t there be mandatory retirement at a certain age?
The problem of old judges, sitting beyond their expiration date, isn’t new, and is always worthy of consideration, both from the functional perspective as well as political. The general answer for federal judges comes with a knock on chambers door from the chief. As Judge Rakoff replied:
As for those (relatively few) federal judges who develop significant mental infirmities with increasing age, they typically receive a visit from the chief judges of their courts, who politely suggest that they retire—which they almost always do.
But 78-year-old Judge Posner?
Richard Posner: I believe there should be mandatory retirement for all judges at a fixed age, probably 80.
Okay, but why, Judge? Why? What is it about older judges, who have gained the experience of years on the bench, that makes 80 the age at which they should be put on the shelf? First, Judge Rakoff:
The list of federal judges who have served with great distinction into their 80s includes, among many others, some of the greatest Supreme Court justices ever, such as Louis Brandeis (82), William J. Brennan Jr. (84), Hugo Black (85), and Oliver Wendell Holmes Jr. (90). The greatest Supreme Court justice of all, John Marshall, who single-handedly provided the foundation for most of the basic principles that still govern the relationship between the federal judiciary and the other branches of government, served until he was 79, which, by modern standards, would be the equivalent of something like 95 or more. And, contrary to Joel’s hypothesis that elderly judges “become too dug in to their beliefs,” the number of Supreme Court justices (as well as lower court federal judges) whose views have evolved as they got older and served longer is very large and includes, just in the past few decades, such influential justices as Harry Blackmun, John Paul Stevens, and David Souter.
To which Judge Posner tacitly responds, “hold my beer”:
If I may tune in, briefly, Blackmun, Stevens, and Souter were not giants. Nor was Brennan, although he was both able and influential, as indeed was Stevens—until he wrote a ridiculous opinion in Clinton v. Jones. Anyone think there’s a giant or giantess on the Supreme Court today?
It takes guts for a circuit judge to publicly smack Supreme Court justices as legal midgets. But Judge Posner’s not done yet.
Nor should appointment to federal courts including the Supreme Court be limited to lawyers. A brilliant businessman, a brilliant politician, a brilliant teacher might make an excellent judge or justice and greatly improve a court, relying on brilliant law clerks for the legal technicalities, which anyway receive far more attention from judges than they should, because most of the technicalities are antiquated crap.
A two-fer! Not only should the Supreme Court, court perhaps being the operative word, not be limited to lawyers (because we’re not up to our eyeballs in proof that a “brilliant business” is just as good as someone with knowledge and experience), but that “technicalities,” like cross examination perhaps, are antiquated crap?
This evoked a shocking epithet from Judge Rakoff.
Rakoff: Jeepers, I’m a little taken aback by Judge Posner’s salvo.
Former Southern District prosecutors are such potty mouths.
From the day they enter law school, lawyers not only learn the legal methods and processes that are necessary to the proper practice and interpretation of law but also learn some very important lessons that are too little taught elsewhere: that there is something to be said for each side of most issues; that careful distinctions therefore matter; that a decision that cannot be supported by reason is essentially lawless; that in the long run the fairness of procedures is as important as the substantive results; that being a good judge is not a popularity contest; and that protecting the rule of law requires eternal vigilance.
But Judge Posner is not about to take this lying down:
It’s not true that there’s something to be said for each side of most issues; that a decision must be supported by “reason,” whatever that means exactly, to avoid lawlessness; personally, I prefer common sense to “reason.”
Those two little words, common sense, the refuge of those who lack the capacity to provide a logical, rational explanation for why they think something, and prefer instead to hide behind their feelz, their bias, the gut reactions, their whims.
How is this possible? A few explanations come to mind. There is no question that Judge Richard Posner has had a brilliant career as a federal judge, but even brilliant people have the occasional synapse disconnect, and Judge Posner has been accused of having more than his share over the past few years. Has he lost it? Has he lost his impulse control, grown disinhibited such that whatever pops into his head gets blurted publicly?
Or is Judge Posner far trickier than the casual reader realizes? As he approaches his own magic age of 80, he may see in himself the limitations that he wants to impose on others. It may be that his fast ball has lost its speed over the years. Or it may be that his fast ball sometimes sails over the plate, and other times winds up in left field.
But consider whether Judge Posner’s putting on a show to demonstrate his point, that the age of a federal judge does matter and there should be a number where a judge “ages out” of his tenure in office. Exhibit A? Richard Posner. Well played, Judge. Well played.