Judge Richard Posner Demonstrates His Point

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.

21 comments on “Judge Richard Posner Demonstrates His Point

  1. wilbur

    Some observations:

    Are you suggesting that command of the judicial fast ball is at least as important as velocity? If so, you are (as my father used to say) correct as hell.

    Of all the courts, I’d speculate that a non-lawyer could function best/easiest on the Supreme Court.

    I believe every elected governmental job should be subject to term limits (rather than age limits), and should be extended to judges as well. When I become King Wilbur (for life, of course) I will decree this.

  2. B. McLeod

    “Brilliant law clerks?” Why wouldn’t a lay justice simply make up “the legal technicalities,” the same way the existing justices do?

    1. SHG Post author

      Don’t be ridiculous. You think kidz can come up with excuses doctrine like “human dignity”?

  3. PseudonymousKid

    Dear Papa,

    Why do you have to be so mean to Gramps Posner? He’s right about most of the technicalities being antiquated crap. It’s just that antiquated crap is still the law. As far as common sense, have you ever tried the legal defense of “nuh-uh.” Works everytime.

    He’s a goddamn hero though for being willing to throw smack openly at the Supremes. I’m going with Judge Posner being the master of all trolls.

    Best,
    PK

  4. Jim Tyre

    I was looking forward to reading Judge Kopf’s comment. But, on reflection, he may be too young to have an informed opinion on the subject.

  5. Richard Kopf

    Jim and Scott,

    Judge Posner raises an important point. Judge Rakoff’s rejoinder is also true, at least in part. Typically, if there is a problem, the Chief Judge will step in and a gentle nudge is all that is required. But, if there is push back, and I have seen such resistance, then it becomes hard and unpleasant for everyone concerned. So, here are my thoughts on how a senior district judge might approach this serious issue.

    First, I think Posner is about right for judges of my vintage and for judges who are older than me. At age 80, judges of my vintage and older should seriously consider retiring. There is pretty good empirical evidence that relatively significant cognitive decline begins roughly at age 75 in a fairly large percentage of men, like me, who were born in 1946 and before. But, that is not true across the board. Many males of my vintage and those who are older are cognitively capable well past 75 or even 80. But if you are an empiricist, your betting against the house at around 80. At age 80, unless you can prove you aren’t nuts you ought to quit.

    I turned 70 last December. Frankly, the only reason I am staying around is to save the jobs of those who work for me. When I retire, they are out of a job. I care too much about my judicial assistant and career law clerks to quit just ’cause I am bored nearly to death. But, while it is true (as I have demonstrated) that I don’t give a shit about my reputation, I also care too much about the Court to continue to judge when I am infirm, cognitively or otherwise.

    Second, I think senior judges ought to begin cognitive baseline testing at 70. Here are my results from a Ph.D. in psychology who holds a law degree:

    “Dear Richard:
    I am writing to provide you with the summary of results from the cognitive screening completed on January 16, 2017. Please review and let me know if you have any questions or would like to discuss these results further.

    DRS-2 SUMMARY OF RESULTS:
    Richard completed the Dementia Rating Scale-2 (DRS-2) with this provider during his session on 1/16/17, as per his request to obtain a baseline screening of his cognitive functioning. He understands that he may request further evaluation and more in-depth testing should he become concerned about cognitive changes at any time in the future and that this may be done through a provider of his choice.

    The DRS-2 is used to measure mental status in adults with cognitive impairment and can be used to track changes in cognitive status over time. The DRS-2 Total Score provides an assessment of the examinee’s overall level of cognitive functioning. It is a composite score comprised of the five DRS-2 subscales: Attention (ATT), lnitiation/Perseveration (l/P), Construction (CONST), Conceptualization (CONCEPT), and Memory (MEM). Richard obtained a DRS-2 Total Score of 143 out of a possible 144 points, which corresponds to an Age­ Corrected MOANS Scaled Score of 14 (90-94 percentile range) and indicates an average (intact) level of performance. The Total Score also corresponds to an Age- and Education-corrected MOANS Scaled Score of 13 and indicates an average (intact) level of performance. The MOANS scaled scores and percentile ranges are based on persons 69 to 71 years of age.”

    Third, senior judges should provide the results of that baseline screening to their active district judge colleagues. I have done that.

    Fourth, at age 75 senior district judges should undergo a full workup (including an MRI and the like) from a physician trained to assess those who may need a dribble cup. The results should be shared with the senior judge’s active district judge colleagues. In that vein, the senior judge should make a written commitment in advance with his or her colleagues that he or she will undergo that full-scale examination and make that examination available to the active district judges. I have made that advance commitment.

    Fifth, upon receiving the full-scale evaluation and assuming the test shows no significant impairment, the senior judge should ask the examining physician about how often the judge should retest thereafter. The judge should bind himself or herself to follow that recommendation and make that commitment known to the active district judges. It should go without saying that results of any retest should be shared with the active district judges.

    Sixth, the senior judge should make arrangements with his or her intimates to notify they Chief Judge if those people see a significant cognitive decline. I have made those arrangements with my judicial assistant and career law clerks who have been instructed to go directly to the Chief Judge without consulting me first.

    Finally, Scott asked the following chilling rhetorical question: “Has he lost his impulse control, grown disinhibited such that whatever pops into his head gets blurted publicly?”

    Damn you. Stop writing about me. In short, STFU.

    All the best.

    RGK

    1. SHG Post author

      Some judges are sufficiently grounded to care about this for themselves, as well as appreciate that they are, almost by definition, not going to be the first one to notice significant cognitive decline (or worse). While your points reflect that you are one of those judges who recognizes the problem, I think point 6 is the key, that those who will likely be the first to see the issues are empowered to act upon it. The only question left is whether they will feel conflicted by their esteem so as to ignore or excuse the signs.

      1. Richard Kopf

        SHG,

        In my comment, and relative to your response, I also should have indicated that I have begun to expand the circle of those who will be tasked with going to the Chief Judge.

        When I was Chief Judge, I requested and received assurances from an AUSA and an AFPD that they would notify me if they saw problems with an older colleague. I met with both of them at the same time so each knew what I had asked of the other and so they would feel free to consult with each other. I am likely to do something similar with lawyers who regularly appear before me–that is, empowering and encouraging them to speak with the Chief Judge should I start failing.

        All the best.

        RGK

        PS She who must be obeyed will never cut me slack either. But she is old too. (Don’t tell her I said that.)

        1. Jim Tyre

          Judge Kopf,

          Really interesting comments, thanks. But why do you limit it to older colleagues? Things can go wrong with younger persons. Just ask Scott, he’ll tell you I’m mentally deranged. ‘-)

          (But yes, it is a serious question. And age is relative. I’m older than him, younger than you.)

          1. SHG Post author

            Because that was the question put to Judges Posner and Rakoff, and thus the topic of this post, Jim. Focus (if you still can at your advanced age).

          2. Richard Kopf

            Jim,

            Ignore Scott. He is too young to understand.

            Why ignore younger persons (judges)?

            The best I can come up with is that the problem with younger judges is relatively infrequent. But that is not a very good answer and I have no direct experience as a judge from which to draw any better information.

            When I was in the practice, a very good state judge was struck with early onset Alzheimers. He was about 60. The judge’s recent memory was pretty well shot, although his warm personality and excellent legal reasoning remained pretty much intact. Even still, if you had more than a one-day trial, you could not be sure that the judge recalled the previous day accurately.

            When one of the better trial lawyers, and President of the Bar, spoke with the judge and told him about what that lawyer and others perceived, the judge was genuinely shocked and immediately went to the doctor. When the doctor diagnosed the problem, the judge promptly retired. In the federal system, my guess is that it would be handled in a similar fashion, probably by the Chief Judge. (Being a Chief US District Judge is a very thankless task.)

            All the best.

            RGK

  6. Rick Horowitz

    I’ve never really liked Posner anyway. I couldn’t exactly put my finger on it; let’s just call it “common sense.”

    But, frankly, his comments here make me want to shout something a little stronger than “jeepers.” As if the law doesn’t have enough problems already, let’s just completely cut it loose from its moorings.

    I’ve never favored the idea of cutting people out of jobs based on age, either. Not everyone ages gracefully (which, as you point out, Posner is proving). But more than a few do. Arbitrarily forcing them to retire because they hit a particular number on life’s scale…why not just pick some other arbitrary characteristic: their politics have gone out of style, they refuse to update their sartorial choices, the older white ones have gotten so fat they look like orcas in their robes? (Throwing that in because lately I’ve noticed the comments are supposed to be more funny than substantive.)

    At any rate, the idea of having people with absolutely no background, training, or experience with legal concepts scares the crap out of me. As I said, things are bad enough as they are.

      1. Patrick Maupin

        Texas has those elected non-attorney judges (“Justices of the Peace” or “JP” for short). The justice may be rough, but the courts are limited to minor matters and appeals are de novo, so the damage they can do is somewhat limited.

        The major problems come, not from JPs, but from the higher court positions which are only open to lawyers who have practiced for at least 4 years. Those courts, and the lawyer DAs who practice in front of them, are often full of what Mark Bennett calls implicit corruption.

        One small (and for me, unfortunately topical) example: the Travis County Probate Court Judge has decided that, by fiat, he can clear his courtroom of pro se executors simply by declaring appearance of an executor sans lawyer to be UPL. Hell, he doesn’t even think that non-lawyers are capable of filing affidavits.

  7. Mario Machado

    Brilliant businessman turned appellate judge: Jim, the government lawyer kept saying “good faith exception” this, “good faith exception” that. What the hell did he mean?

    Brilliant law clerk: Well, sir, the attorney general was addressing the exclusionary rule…

    Judge: General? I didn’t know he was a veteran. Good for him. But answer my question, forget those pesky technicalities about excluding or whatever … wait, let’s simplify this. I got it! is there proof of “bad faith” from the officer?

    Clerk: Not necessarily, but…

    Judge: That’s it! If he wasn’t acting in bad faith, it only means had good faith in what he was doing. It’s only common sense. Upheld!

    Clerk: You mean affirmed, sir.

  8. Lex

    “Relying on brilliant law clerks for the legal technicalities.”

    Wait, why shouldn’t the clerks also be brilliant businessmen, teachers, etc., too? It’s not like we start the job versed in the finer points of sentencing, death penalty appeals, and evidentiary waiver vs. forfeiture, etc. (In fact, it actually makes a lot more sense for judges instead to hire, say, a brilliant copy editor, data analyst, businessman, anthropologist, etc. rather than law students.*) Hell, we have externs/interns, mags, special masters, and Lexis for that legal stuff.

    I’m eagerly awaiting the day when evidentiary objections are met with 5 minutes of silent and furious googling and a citation to wikipedia.

    *Upon reflection, I surprised that he hasn’t.

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