Standoff Over 95-Year-Old Judge Shows Downside of Lifetime Jobs

The unsightly saga of a federal appeals court’s chief judge trying to unseat a colleague over concerns about health and cognitive impairments is again raising questions around lifetime judicial appointments and what to do when a judge may no longer be capable of performing the work.

Chief Judge Kimberly A. Moore of the US Court of Appeals for the Federal Circuit, the nation’s top court for patent matters, has filed a misconduct complaint against Judge Pauline Newman, 95. The order signed by Moore alleges that court personnel had raised concerns about Newman’s cognitive abilities, that Newman had resisted going on senior status after a series of health issues, and that she was far less productive than other judges on the court.

The Newman episode proves that the traditional checks and balances for aging judges—colleagues or family members nudging them toward retirement—might not always work. It’s an issue that won’t go away with the average age of federal judges now 69.

“It’s really problematic to have a combination of life tenure with no—and I mean zero—check-ins for cognitive ability,” said Francis Shen, a professor at the Harvard Medical School Center for Bioethics.

Those going in front of judges have the right to know about their competency just like they would have a right to know about any potential conflicts of interest, Shen said. “If the judge knew one of the parties or had invested in one of the companies — to me, it’s the same thing that there should be a disclosure of some sort,” he said. “But we don’t have that.”

The Newman episode is reminiscent of a situation in 1975, when it became clear that Supreme Court Justice William O. Douglas could no longer do his job after a stroke but wouldn’t step down. In that case, the court decided to ignore Douglas’ vote on critical appeals, and held over cases where his vote was decisive.

Richard Posner, a judge for the Seventh Circuit Court of Appeals, retired unexpectedly in September 2017 and months later was diagnosed with Alzheimer’s disease, according to reports.

A Competency Test

Cognitive assessments are routine for older people when it comes to driving or to determine if they are able to handle their finances, Shen said. For politicians, voters can make an assessment every two, four or six years. But for judges, he said, “there are few mechanisms and they’re rarely used for assessing and then responding to the potential for cognitive decline.”

Some states have tackled this issue by having mandatory retirement ages for their judges. More than 30 states and the District of Columbia have them for appellate or general jurisdiction court judges, according to the National Center for State Courts.

“That’s problematic, too, because one thing you want from the judge is wisdom,” Shen said.

Tish Vincent, chair of the American Bar Association’s Commission on Lawyer Assistance Programs, which helps aging attorneys, said it’s unusual for someone to know when they are slipping into cognitive decline.

“Some of the first things to go is awareness of the fact that you’re not as sharp as used to be,” Vincent said.

Shen’s proposed solution: a judicial health-assessment program that would collect cognitive data when a judge is nominated and in follow-ups every five years. The results of that testing would remain private and confidential, according to Shen.

David Garrow, an American legal historian, said in an email that a circuit’s judicial council should “have the formal authority to impose complete recusal upon an Article III judge found unable to perform her/his duties, such that they would hear no cases but not be removed from office.”

Garrow, who said that he had read Moore’s order, said it’s clear that she made every effort to resolve the problem informally.

Aging Differently

Shen is working with Benjamin Silverman, an academic psychiatrist at the Harvard Medical School Center for Bioethics, to offer a course that will deal with aging in different professions.

Silverman said there are judges or lawyers or other professionals who can be fully competent into their 90s, while others in the same profession can slow down after a certain age. It’s akin to Tom Brady playing quarterback in the National Football League at 45 while others lose arm strength in their early 30s, he said.

One example that looms large in the legal profession is that of Supreme Court Justice John Paul Stevens, who worked at the high court until retiring at 90 in 2010.

“The other challenge is cognitive testing is pretty subjective. And so, if you don’t have a baseline for someone, it’s hard to know,” Silverman said.

Xiao Wang, a clinical assistant professor at Northwestern University, pointed out in a Bloomberg Law article that more than one-tenth of federal judges are now over age 80.

“What is happening to Newman will, in short, only happen again, and likely with greater frequency in the near future,” Wang said.