Tyranny Of The Geezers

What kind of truck does an old judge drive, and why should you care?  Because that’s the sensibility of the geezer who’s going to make some decisions that dictate what will happen with your life or fortune.  In America, most judges are, well, old.

Conventional wisdom has it that wielding the gavel takes years upon years of lawyerly practice. Judging by that standard, the U.S. federal bench must be very effective, indeed: About 12 percent of the nation’s 1,200 federal judges are 80 or older, according to a 2010 survey by ProPublica. Eleven were over the age of 90, almost three times as many 20 years before. Other things that happened over those 20 years: the Internet. Plus smartphones, Twitter, Facebook, hacking, legal weed, etc., etc., etc. Plus dementia and senility, for some. On issues of the day, like privacy or hacking, can older judges possibly keep up?

On the one hand, they have the wisdom and experience gained from a lifetime, assuming you don’t look too closely at how their lives paralleled yours. On the other hand, they don’t have an adequate appreciation of the value of Facebook friends, or the insult of being unfriended by your former BFF.

The issue of federal judges understanding the digital world has long been a problem discussed here. Even though technology can be explained to them, can they really understand a world in which they’ve never participated, technology they’ve only seen from a distance?

Unsurprisingly, the judges themselves have excellent arguments why age rules. Richard Posner, a relatively spry 76, argues that it has to do with the American common law system, which is based on precedent: “The more a judicial system adheres to stare decisis (precedent), the older its judges will be on average,” he writes in his book Aging and Old Age. Judge Posner may well be right — we don’t much want to get into an argument with a man who’s been throwing down from the 7th Circuit since we were a fetus — but we must point out another, far more prosaic reason our federal judiciary is so old: Federal judges have lifetime tenure. And in jurisdictions where judges face mandatory retirement at, say, 70, they’ve mounted campaigns to raise the limit to 80, citing their experience and a huge case backlog.

Then again, the virtues of stare decisis are increasingly dubious, as law developed to address the problems facing Conestoga wagons are being applied to Stingray cellsite spoofing.  While precedent brings consistency, slavish adherence to precedent doesn’t necessarily provide fair or effective determinations when the analogies are strained beyond recognition.

Shannon Syms at Ozy questions why America doesn’t what many other countries do, create a cadre of young professional judges to serve as our decision makers.

But why not have younger judges fill the gap? For years, in jurisdictions from India to France to Brazil, you could go straight from law school to a judgeship. Pass the judge test? You’re in. In Brazil, for example, meeting a 20-something judge in the streets at Carnaval is still not particularly remarkable. We couldn’t say the same for most of our bench, save for, of course, the Notorious R.B.G.

Pass the judge test? Not an entirely comforting notion, much like passing the bar exam is all one would need to be at the height of one’s mad legal skillz.  What would that test, exactly? Statutes? Well, they’re easy enough to look up. Arrogance? Is there a test for that?

Would younger judges be better? Emanuel Bonfim, a Brazilian magistrate judge, says young blood “oxygenizes the system and lends a multigenerational dynamism to the judiciary.”

Frankly, anyone who says something like “oxygenizes the system” shouldn’t be allowed to do anything beyond marketing laundry detergent. We get enough empty rhetoric already. Shouldn’t we hope that judges be capable of expressing something more substantive and comprehensible?

Though the title to the post is “Ditch The Geezer Judges,” it really has nothing to do with invigorating the judiciary with youth, but with creating a second legal track, a parallel career, of judging apart from that of lawyering. If there were, as Syms questions, a secondary career path just for the judiciary, it would ultimately age just like our judges do. So Sym conflates two entirely separate issues, youth and a separate judicial career path.

There is the question of whether life tenure is as good an idea today as it was when judges had a life expectancy of 47 years, particularly as we have the ability to prolong some parts of the body beyond others, notably the mind.  Sure, we all applaud the elderly judge (which is now in the 90s as far as I’m concerned) who has his wits about him, but avoid mentioning the senile judge in his 80s who is similarly making decisions that destroy people’s lives with less than brilliant reasoning.

The trade off has always been fairly clear, life experience versus cultural competence, thoughtfulness tested over the years versus the brightest light of the moment.  It’s not that one side wins by a landslide, or that there aren’t times or cases where one would be substantially more advantageous than the other.

But since we cannot maintain two entirely different judicial tracks, just because we would prefer one sometimes over the other, we’re constrained to pick one and live with it, for better or worse.  Having been young and old, and having spent more than 30 years holding the hands of clients whose lives and fortunes were on the line, there is no question in my mind that life experience trumps an “oxygenize[d] system” that “lends a multigenerational dynamism” for anything beyond the latest smartphone app.

But if someone were to ask, the one thing that our federal judiciary desperately needs is greater breadth of life experience, like trench lawyers who didn’t spend their careers in the sanitized world of academia and government, and whose life experiences remotely resembled those over whom they preside.  And it wouldn’t hurt if there was an expiration date at, say, 80 years of age, as well.  Experience is important, but dementia isn’t nearly as sound a basis for judgment as it might seem.

H/T Doug Berman

10 thoughts on “Tyranny Of The Geezers

  1. Richard G. Kopf

    SHG,

    I foregive you for attacking my S-10 and calling me a geezer (the latter description being true as an acturial matter). By the way, I used the S-10 yesterday to go to the dump with a load of tree branches that I cut up with a chain saw after a big wind storm. Due to my illness, I haven’t been to the dump, which is one of my favorite places, in two years. It was a hallmark of sorts for my recovery that I was able to return to a place where I have so many happy memories.

    For what is worth, I have made the following things clear to my court: (1) While a senior status judge, I will try to take a full caseload until 70 (my health permitting); and (2) at 70, in about 1.5 years, I will begin reducing my caseload and I will fully retire at 75 no matter what.

    The last point is driven by my experience. I have witnessed judges who didn’t know when to quit. Some were fantastic judges for decades, until they weren’t. I don’t trust myself to know precisely when I must quit. I am pretty sure I will be OK at 75. After that, for me, it is a crap shoot. Arbitrary, sure, but it gives me (and I suspect my judicial colleagues) a comforting and precise end point.

    Finally, it is becoming popular among elites to call for terms limits or mandatory retirement for federal judges as opposed to the system of life tenure that has been with us since the Founding. Initially, a lot of the motivation for those calls have nothing to do with the merits, but much more about ousting judges whose decisions are disliked by academics and others of like persuasion. Far more importantly, forget what self interested judges like me have to say about life tenure. Rather, ask yourself honestly whether changing the Constitution is more likely than not to produce a materially better federal judiciary. If you can’t answer that question in the affirmative with some degree of assurance, remember the old adage that physicians have followed for thousands of years: First, do no harm.

    It is time for my nap. All the best.

    RGK

    1. SHG Post author

      By no means did I intend to suggest you were a geezer. On the other hand, the S-10 is just awful. At least you have the adorable little John Deere tractor.

  2. bmaz

    “oxygenizes the system and lends a multigenerational dynamism to the judiciary.”

    The utterer of that line should be shot immediately.

    Maybe there should be an upper limit. I dunno, but my experience, with only a couple of exceptions, has been that older judges – even well into 80’s – have been fine. I know there have been instances where others have not been, but I have been fortunate not to have seen that. To me, the real issue is, as you say. diversity and breadth of experience.

  3. Mark Dwyer

    NY State says that I have to go in December 2020 at age 70. I’m quite all right with that. I’ll have been 45 years a lawyer, and about 10 years a judge, at that point. I can’t say that the system “owes” me anything beyond that. (And the pension is pretty good).

    Life tenure for federal judges may well have been a good idea in 1789. I haven’t dusted off my volume of the Federalist Papers for a while, but fortunately I have a teenager who has instructed me just suffiiciently to let me copy and paste from the internet:

    “That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.”

    So the plan was to prevent politics from knocking able fellows (and only fellows, of course) off the bench for unpopular decisions. The plan seems not to have been to avoid a mandatory retirement age; I doubt that the Founders were focused at all on the thought that it would be wise to keep judges on the bench into their 80s.

    1. SHG Post author

      The plan was to insulate the judiciary from politics. It seemed like such a good idea.

      And when did you get so old? I figure you were around 35 or so, just a tad older than me.

  4. JD

    For years, in jurisdictions from India to France to Brazil, you could go straight from law school to a judgeship. Pass the judge test? You’re in.
    ~~~
    It’s not only not comforting, it’s downright frightening. Could you imagine Judge Joseph Rakofsky?

      1. Troutwaxer

        That’s the bad news. On the other hand, consider the idea of a judge who doesn’t have the biases of either a prosecutor or a defense attorney, (though ideally a judge has done both jobs for a roughly equal amount of time.)

      2. REvers

        Or Judge Mary Anne.

        Then again, she might have some difficulty passing the judge test. Presumably it would have a section on the First Amendment.

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