Standoff over 95-year-old judge shows downside of lifetime jobs

https://news.bloomberglaw.com/us-law-week/standoff-over-95-year-old-judge-shows-downside-of-lifetime-jobs

by hhs • 3 years ago

77 65 3 years ago

news.bloomberglaw.com

overthrow2• 3 years ago

Here's your vocabulary word of the day:

https://en.wikipedia.org/wiki/Gerontocracy

A gerontocracy is a form of oligarchical rule in which an entity is ruled by leaders who are significantly older than most of the adult population.

seattle_spring• 3 years ago

So is the US a gerontocracy? Our last 2 presidents have been fucking ancient, and the ones prior to them haven’t been much younger save for Obama.

bigmattystyles• 3 years ago

I think Clinton was younger than Obama when he took office.

ceejayoz• 3 years ago

The Senate is 79% Boomers or older, too.

overthrow2• 3 years ago

In case you didn't click through, the wikipedia article has a whole section about the US.

hibikir• 3 years ago

In the 80s, the Soviet Union was criticized for being a gerontocracy. Brezhnev came to power in his 50s, and died in charge at 75. He was replaced by Andropov, 67. Then came Chernenko, 72. They had worse medicine than we have today, but they would all be spring chickens compared to our recent presidential candidates. The median US senator is 65. Chuck Grassley is 89, and has held his seat since 1981. Diane Feinstein is also 89.

And the picture in the Supreme Court isn't much better, even though there are big advantages in nominating young judges, which can hold on to their seats for many decades.

So is the US a gerontocracy? It's not much of question.

seanmcdirmid• 3 years ago

Trump, Bush, and Clinton were all born in 1946 (ie pure baby boomers). But Clinton was a much younger president than Bush, who was a much younger president than Trump.

brailsafe• 3 years ago

So like, the whole housing market in some areas

outlace• 3 years ago

I mean, we're the ones voting for these people. Also, this is like one judge in the whole country, and apparently from this article the last time this happened was in 1975. I don't think we need to create new regulations for every little rare problem. Things can be dealt with on a case by case basis sometimes.

carlosjobim• 3 years ago

Who are "we"? Where's the young citizen who had a say on who should be judge? Where's the young citizen who voted for the Federal Reserve chairman or the ECB president?

KennyBlanken2• 3 years ago

I mean, we're the ones voting for these people

Often we don't have a choice; even if party support wasn't mandatory, there are young, newly elected congressional representatives who are struggling to support their families because congress never once considered that one of them might not be independently wealthy.

labster• 3 years ago

Easily confused with a gerundtocracy: ruling by the present participle class.

koolba2• 3 years ago

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.

I’d love if all elected officials were mandated to disclose all the medications they are taking. At least let us know who in Congress is taking Alzheimer’s medication.

anonymousiam• 3 years ago

Why limit it to congress? I suspect there may be a high-level elected official in the executive branch that is also using such medication.

everforward2• 3 years ago

That creates a perverse incentive to not take medication. I.e. we'd end up where we are now, but with unmedicated people.

I do think psychiatric evaluations make sense, especially for judges. They can really mess someone's life up, and theoretically the judgement would be overturned on appeal, but that's little solace to someone that spent 6 months in jail while the appeal happened.

voakbasda• 3 years ago

One problem with this strategy is that such evaluations are relatively subjective. Like everything else in government, the process would become stacked with politically motivated individuals that have an agenda, and the judiciary would ultimately be biased according to their whims.

shostack• 3 years ago

See: aviation and the FAA

harimau7777• 3 years ago

Wouldn't that likely result in there being no neurodivergent judges? It would undermine the whole idea of "trial by peers" if neurodivergent people are being tried purely by neurotypical people.

lostapathy• 3 years ago

It’s “a jury of peers” - that line says nothing about judges. And indeed, judges have very little in common with the common person they see in court.

lando2319• 3 years ago

The problem with competency tests, they would inevitably get abused by political parties, also would a defendant just be able to demand a competency test just because the judge looks elderly?

TrueSlacker0• 3 years ago

I internally debate it but I always seem to come back to the thought that if you can collect social security you shouldn't be allowed to hold public office.

rhelz• 3 years ago

If we didn't grant lifetime tenure to judges, they would live in perpetual fear of retaliation from ruling against a powerful or well-connected defendant.

C.F. also university professors or school teachers who also get similar, tho more limited tenure.

Not saying there are no edge cases where the policy can be problematic, but when you are standing in judgement over people, its a lot easier to be impartial and a lot easier to reject bribes when you have that kind of security.

giobox• 3 years ago

This has a simple solution used in other countries - Lifetime appointments with mandatory retirement ages. The UK as one example requires much of the judiciary to retire by 70.

ihumanable• 3 years ago

We could just appoint them until a given age, let's say 70 for example, and then guarantee lifetime benefits after that but they no longer serve.

It has all the same benefits of a lifetime tenure, they don't need to worry about retaliation, they wouldn't be _more_ likely to accept bribes since they will still have income and benefits for their retirement, etc.

philsnow• 3 years ago

all the same benefits of a lifetime tenure

Well, unless the person strongly values the contribution to society that being a judge represents. If there's another career they could go into and still practice into their 90s, maybe they'd prefer that.

ipcress_file• 3 years ago

Canada's Senate has a mandatory retirement age of 75. So that's a perfectly workable solution.

sidewndr464• 3 years ago

Also known as "normal job security" to anyone living in the real world.

kelipso• 3 years ago

Just set it to 20 years or something with no option to renew. There are plenty of government positions that have limit of like 5 years or something.

cameldrv• 3 years ago

A lot of jobs used to have mandatory retirement at 65. Past 75 or 80 there is a clear decline in cognition for most everyone. There also used to be norms about these sorts of things. People don’t like to follow norms anymore so perhaps we should make a rule.

yieldcrv• 3 years ago

Many licenses require retesting every couple of years

zuminator2• 3 years ago

Problem is, even if we agreed in principle to a mandatory retirement age, the party not in power would not want hand over those vacancies to the sitting president. The article points out that over a tenth of Federal judges are over 80. If presumably they're half D, half R, and they would all be forced to retire, then the current administration would get a free pass to replace a large cohort of politically mixed old judges with a homogeneous slate of young D judges. And it would be a one-shot imbalance, because in the future, judges would age out gradually instead of 10% all at once. So it's unlikely R's would agree to it, nor would D's agree when R's are the ones in power.

The only way I could see it being politically palatable is if current judges over 80 are allowed to remain, but any judges turning 80 as of a certain future date are made to retire. So, for instance, if the law went into effect today it could declare that any judge born in the year 1950 or later and turning 80 as of Jan 1, 2030 or later would have to retire.

zoklet-enjoyer2• 3 years ago

Judges should not be partisan

perfecthjrjth• 3 years ago

Judges are always 'partisan', meaning that they are influenced by some or other ideology, policy choices, theories. As long as a certain segment of population finds their judgments reasonable, that's fine. What is reasonable to one set of people, may not be reasonable to another set of people. The issue is not about truth or falsity, but one of reasonableness.

harimau7777• 3 years ago

Sure, but they are. I don't think we can do better than account for the fact that they are partisan.

stubish• 3 years ago

Rather than a retirement age, you could just appoint a judge for a fixed tenure. How long that is could be based on the current age of the appointee, or could be less to best avoid clusters of appointments. Tenure of course needs to be long, probably with a minimum in decades to cover multiple election cycles.

akvadrako• 3 years ago

Indeed. This is also more future-proof. If people live longer and retire at say 120, do we really want judges to sit there for 80 years without a chance to re-evaluate them?

throwaway426079• 3 years ago

While this could be solved by judges choosing to retire early while under a 'friendly' administration, recent experience tells us this is not going to happen every time.

harimau7777• 3 years ago

Perhaps a better way to handle things would be to ensure that the number of judges is balanced. For example, the law could require the ratios of federal judges to match the ratio of the popular vote in the most recent election. Or new administrations could be allowed to appoint new judges.

Otherwise we still have the problems of judicial rulings primarily depending on what administration happens to be in power when it is time to replace a judge.

eesmith4• 3 years ago

Seems easily gamed and hard to implement.

One's official political affiliation is easily changed.

What do you do about independents?

What about third parties? Is there a minimum threshold for party size? That is, if party X has 10,000 members, must an X judge be appointed? What about 1,000 members? 10 members?

eesmith4• 3 years ago

Another possibility is that all new judges have limited appointment. It would be several presidential terms before this had any effect, and be staggered over multiple presidents.

KennyBlanken2• 3 years ago

then the current administration would get a free pass to replace a large cohort of politically mixed old judges with a homogeneous slate of young D judges. And it would be a one-shot imbalance, because in the future, judges would age out gradually instead of 10% all at once.

Allow me to point out how absurd this objection is in the context of the last decade and a half or so.

Party A publicly declares that as a matter of policy, they will proudly and purposefully go to any length to prevent nominations by the presidency, held by Party B, for eight years.

Party A secures the presidency (with the lowest popular vote count in history) and proceeds to stuff the federal judiciary with nearly two hundred and fifty appointments, many of whom are widely criticized by numerous groups including the American Bar Association as being wildly unqualified and in the few short years since have handily confirmed this with comically bad rulings.

In a severe backlash by the American public, Party B returns to the white house and secures substantial congressional control

It is pointed out that we have a small number of judges who are senile and that they should probably be forcibly retired

...and that is "unfair" because Party B would get the "one shot" opportunity to replace a handful of judges...

...after party A replaced two hundred and fifty in four years?

Bish, please.

zuminator2• 3 years ago

Just to be clear, I absolutely agree with you. But what's best for the nation is severely circumscribed by what's politically possible. As Lord Acton put it, "Everybody likes to get as much power as circumstances allow, and nobody will vote for a self-denying ordinance."

ars• 3 years ago

Even better, set the retirement age to 100 in 2023, and every year after that drop the age by 1 until 2043 when it reaches 80. It'll take a little while, but you'll implement your rule without major disruption, as each year 2 years worth of judges retire.

brnt• 3 years ago

If presumably they're half D, half R, and they would all be forced to retire, then the current administration would get a free pass to replace a large cohort of politically mixed old judges with a homogeneous slate of young D judges

Not bad compensation for the enormous cohort of R judges appointed during the Trump administration.

Eddy_Viscosity2• 3 years ago

Aren't judges supposed to apply the rule of law regardless of political affiliation? Isn't the law meant to be blind to such things?

The fact that it does in fact matter (in some cases a lot!) in practice is a bit a bigger problem than the judges' age.

darkwizard42• 3 years ago

I think this is more of a simplification than a true political affiliation. Judges have conservative and liberal leaning tendencies in their interpretation of the law -- they are supposed to provide an interpretation of the law and naturally that will land on one end of the political spectrum. Personal bias creeps into many rulings and is especially common at the lowest level courts (where checks are limited and visibility is low).

Conservative judges can greatly limit progress on a number of hot button issues that matter to Republicans and similarly, liberal judges can push the interpretation of laws which might not be desired by the other side. Even at the Supreme Court level you can see the conflict play out.

nerdchum• 3 years ago

Haha so a......grandfather.... clause?

sidewndr464• 3 years ago

They might have to add a great grandfather clause

woleium• 3 years ago

just have them pick their own replacement

koolba2• 3 years ago

Unelected people picking lifetime appointments is a recipe for disaster.

zoklet-enjoyer2• 3 years ago

Nominated by Ronald Reagan in 1984. We need a higher turnover rate on these jobs. https://en.m.wikipedia.org/wiki/Pauline_Newman

nisegami• 3 years ago

I'm advocating for fixed-duration appointments then euthanasia.

CraigRo• 3 years ago

I recall talking with a 70 year old physicist who was the last professor forced out by mandatory retirement. He was a great teacher and incredibly bitter about this. I work with a number of 75+ programmers- it is hard to get this right, and, outside of judges who are protected constitutionally, you run into huge labor law problems

Standoff over 95-year-old judge shows downside of lifetime jobs

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